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Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows : 

1.  A  succinct  statement  of  leading  principles  in  black- 

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2.  A  more  extended  commentary,  elucidating  the  princi- 

ples. 

3.  Notes  and  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75  per  volume,  including  delivery. 

Bound  in  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.     (3d  Ed.) 

2.  Clark  on  Criminal  Law.     (2d  Ed.) 

3.  Shipman  on  Common-Law  Pleading.    (2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.) 

5.  Black  on  Constitutional  Law.     (2d  Ed.) 

6.  Fetter  on  Equity. 

7.  Clark  on  Criminal  Procedure. 

8.  Tiffany  on  Sales.     (2d  Ed.) 

9.  Glenn  on  International  Law. 

10.  Jaggard  on  Torts.     (2  vols.) 

11.  Black  on  Interpretation  of  Laws. 
11'.  1 1  ale  on  Bailments  and  Carriers. 

13.  Smith  on  Elementary  Law. 

14.  Hale  on  Damages. 

l.~>.  Hopkins  on  Real  Property. 

Hi.  Hale  on  Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations.    (2d  Ed.) 

18.  Croswell  on  Executors  and  Administrators, 
in.  Clark  on  Corporations.     (2d  Ed.) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 
•2-2.  M'-Kclvey  on  Evidence.     (2d  Ed.) 
•J ::.  Harrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

KM  ton  on  Equity. 

20.  Tiffany  on  Principal  and  Agent 

27.  Gardner  on  Wills. 

28.  Vance  on  Insurance. 

20.  Ingersoll  on  Public  Corporations. 

30.  Hughes  on  Federal  Jurisdiction  and  Procedure. 

31.  O'hilds  on  Suretyship  and  Guaranty. 

32.  Costlgan  on  American  Mining  Law. 

In  preparation :    Handbooks  of  the  law  on  other  subjects  to  be  announced 
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Published  and  for  sale  by 
WEST  PUBLISHING  CO.,  ST.  PAUL,  MINN. 

C58lK>d 


HANDBOOK 


or 


EQUITY  JURISPRUDENCE 


By  JAMES  W.  EATON 

of  the  Albany  Bar 

Professor  of  Law  In  the  Albany  Law  School,  and  Lecturer  in  the 
Boston  University  School  of  Law 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 

igox 


COPTRIQHT,   1901, 

BT 

WEST  PUBLISHING  CO. 

T 


PUBLISHERS'  PREFACE. 


By  the  untimely  death  of  James  W.  Eaton,  the  author  of 
this  book,  soon  after  the  completion  of  the  manuscript,  and 
while  it  was  yet  in  the  hands  of  the  printers,  the  making  of 
such  statement  as  may  be  helpful  to  the  reader  in  regard  to 
its  purposes,  scope,  and  preparation,  which  would  have  come 
more  fitly  and  satisfactorily  from  him  who  had  devoted  to 
the  work  much  of  the  last  year  of  his  life,  devolves  on  the 
publishers. 

The  general  purpose  of  the  author  and  the  publishers  has 
been  to  make  a  systematic,  complete,  and  reliable  presenta- 
tion of  Equity  Jurisprudence,  as  full  as  is  practicable  within 
the  limits  of  an  ordinary  volume,  in  the  form  and  having  the 
special  features  of  the  Hornbook  Series,  and,  like  others 
of  the  series,  adapted  to  the  needs  both  of  the  student  and 
the  practitioner.  The  Hornbook  method,  combining  text, 
commentary,  and  annotation,  seems  peculiarly  suitable  for 
the  treatment  of  this  subject,  in  which  general  principles  and 
maxims  are  so  prominent  and  controlling,  and  their  meaning 
and  application  are  so  fully  'illustrated  by  decided  cases. 
The  chief  difficulty,  indeed,  arises  from  the  great  extent  and 
variety  of  the  subjects  involved  in  the  application  of  equi- 
table doctrines.  But  while  exhaustive  treatment  of  spe- 
cific subjects  of  equity  jurisdiction  is  beyond  the  scope  of 
this  work,  it  is  quite  practicable  to  exhibit  the  application 
to  each  such  subject  of  the  various  principles  applicable, 
as  fully  as  is  useful  in  a  general  treatise. 

To  the  execution  of  this  project,  the  author  brought  quali- 
fications not  often  found  in  combination :  Thorough  knowl- 
edge of  the  subject,  derived  from  study,  stimulated  by  genu- 
ine interest  in  this  department  of  the  law;  experience  as  a 
practicing  lawyer,  who  had  put  to  actual  test  the  relative 
weight  of  conflicting  principles,  arguments,  and  precedents, 
and  who  knew  what  the  practitioner  would  expect  in  such  a 
work;  experience  as  an  instructor  and  lecturer  on  the  law, 

(V) 


vi  PUBLISHERS'  PKEFACE. 

who  understood  the  requirements  of  both  teacher  and  stu- 
dent; and  command  of  a  clear  style  and  faculty  of  precise 
expression,  well  calculated  to  render  the  work  attractive  in 
form  as  well  as  reliable  in  substance.  It  is  believed  that  the 
result  fully  realizes  what  was  intended  and  expected. 

In  particular,  the  author  has  endeavored  to  state  and  ex- 
plain accurately,  clearly,  and  concisely  the  principles  of  the 
subject,  as  now  established;  to  describe  the  origin  and  de- 
velopment of  equity  as  a  system  and  of  its  particular  doc- 
trines, so  far  as  may  aid  in  understanding  their  scope  and 
application;  to  indicate  the  qualifications  and  limitations  of 
each  principle  or  rule,  whether  inherent,  or  imposed  by  the 
relation  of  equity  to  the  common  or  the  statutory  law,  or 
arising  only  in  its  application  to  a  specific  subject;  to  show 
the  scope  and  operation  of  the  various  equitable  remedies ; 
and  to  illustrate  the  whole  by  ample  statements  and  cita- 
tions of  judicial  decisions,  especially  the  more  recent  cases. 

That  the  rules  of  equity  are  to  be  sought  in  the  modern 
rather  than  the  ancient  cases,  by  reason  of  the  progressive 
nature  of  equity  jurisprudence,  has  long  been  recognized. 
Besides  this,  new  applications  of  equitable  doctrines  and 
new  uses  of  equitable  remedies  continually  arise.  On  the 
other  hand,  the  adoption  and  application  by  law  courts  of 
equitable  doctrines,  legislative  enactments  recognizing  and 
enforcing  equitable  rights  and  principles,  and  changes  in 
forms  of  procedure,  have  removed  the  occasion  for  resort  to 
the  equity  courts  in  large  classes  of  cases,  and  thus  made 
practically  useless  the  discussion  of  many  equitable  doc- 
trines. In  this  work,  the  treatment  of  the  various  subjects 
is  intended  to  correspond  to  the  existing  conditions  of 
equity  jurisprudence,  as  developed  or  diminished,  for  prac- 
tical purposes ;  and  in  this  respect,  especially,  it  is  believed 
the  book  will  prove  more  useful  than  its  predecessors,  as 
treating  the  subjects  of  present  interest  more  fully  as  well 
as  in  their  latest  developments. 

The  author  had  expressed,  in  the  strongest  terms,  his 
sense  of  obligation  to  Frank  B.  Gilbert,  of  the  New  York 
Bar,  for  the  greatest  possible  assistance  in  preparing  the 
manuscript,  without  which  he  believed  he  would  have  been 
unable  to  complete  the  work,  by  reason  of  the  exactions  of 
other  professional  engagements;  and  he  had  intended  to 
make,  in  the  preface  or  otherwise,  full  acknowledgment 


PUBLISHERS'  PREFACE.  vii 

thereof.  Upon  Mr.  Gilbert  has  devolved,  also,  the  responsi- 
bility and  labor  of  reading  and  correcting  the  proof,  com- 
piling the  index,  and  other  matters  incident  to  the  produc- 
tion of  the  book.  The  publishers  gladly  add,  to  the  author's 
tribute  of  thanks  and  appreciation,  their  own  acknowledg- 
ment of  the  important  services  rendered  by  Mr.  Gilbert, 
before  and  since  the  decease  of  the  author. 

In  the  preparation  of  the  work,  free  use  of  the  material 
contained  in  Fetter  on  Equity,  an  excellent,  though  much 
briefer,  work  of  the  same  nature,  was  authorized  by  the  pub- 
lishers, owners  of  the  copyright.  Whenever  other  standard 
authors  have  been  quoted  or  otherwise  used  as  authorities, 
as  the  great  work  of  Pomeroy  on  Equity  Jurisprudence,  or 
other  writers  on  special  topics,  due  credit  is  given  in  the 
notes.  In  the  main,  the  work  is  derived  from  the  decisions, 
with  special  attention  to  those  included  in  well-known  col- 
lections of  illustrative  cases,  principally  White  and  Tudor's 
Leading  Cases  in  Equity  and  Keener's  Cases  on  Equity 
Jurisprudence. 

WEST  PUBLISHING  CO. 

St  Paul,  Minn.,  Sept  16,  1901, 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

ORIGIN  AND  HISTORY. 
Section  Pag« 

1.  Distinction  Between  Equity  and  Law — History. .      1-10 

2.  Causes  of  the  Existence  of  the  Equity  Jurisdic- 

tion        11-18 

8.    Separate  Equitable  Tribunals  Abolished 18-19 

4.    Equity  Jurisdiction  in  the  United  States 19-25 


CHAPTER  H. 

GENERAL  PRINCIPLES  GOVERNING  THE  EXERCISE  OF 
EQUITY  JURISDICTION. 

5.  Equity  and  the  Common  Law 26-28 

6.  Equity  Jurisdiction   Defined 28-29 

7.  Exercise  of  Equity  Jurisdiction 30-31 

8.  Adequate  Remedy  at  Law 31-35 

9.  Multiplicity  of  Suits 35-39 

10.  Retention  of  Jurisdiction  to  Award  Complete  Re- 

lief      39-40 

11.  Effect  of  Acquisition  by  Courts  of  Law  of  a  Juris- 

diction Similar  to  that  of  Equity 41-42 

12.  Auxiliary  Jurisdiction  of  Equity 42-43 

CHAPTER  in. 

MAXIMS. 

13.  No  Wrong  without  a  Remedy 44-47 

14.  Equity  Follows  the  Law 47-52 

15.  Equity  Aids  the  Vigilant 52-57 

16.  Equality  Is  Equity 58-61 

17.  Equal  Equities,  the  Law  Must  Prevail 61-62 

18.  Equal  Equities,  First  In  Order  of  Time  Must  Pre- 

vail         62-64 

19.  He  Who  Seeks  Equity  Must  Do  Equity 65-69 

20.  He   Who    Comes    into   Equity   Must    Come   with 

Clean  Hands 69-77 

EATON, EQ.  (ix) 


TABLE   OF   CONTENTS. 


Section 

21.  Equity  Looks  on  That  as  Done  Which  Ought  to  be 

Done   ........................................     77-81 

22,  Equity  Looks  to  the  Intent  Bather  than  to  the 

Form    ........................................     81-86 

28.    Equity  Imputes  an  Intent  to  Fulfill  an  Obligation.  .    8C-87 

24.  Equity  Acts  In  Personam  ........................     88-94 

25.  Equity  Acts  Specifically,  and  not  by  Way  of  Com- 

pensation ....................................         W 


CHAPTER  IV. 

PENALTIES  AND  FORFEITURES. 

26-27.  Doctrine  Relative  to  Penalties  and  Forfeitures...    95-96 

28-29.  Definitions    , 97-99 

80.  Grounds  for  Relief 99-101 

31.  Liquidated  Damages 101-102 

82.  Rules  Governing  the  Determination  as  to  Liqui- 

dated Damages  or  Penalty 102-110 

83.  Enforcing    Forfeitures 110 

84.  When  Equity  Will  Relieve  Against  Forfeitures.  ..111-112 

85.  Statutory  Penalties  and  Forfeitures 112 


CHAPTER  V. 
PRIORITIES  AND  NOTICE. 

86.  Origin  and  Application  of  Doctrine  of  Priority...  .113-114 

87.  Doctrine  Does  Not  Apply  to  Legal  Estates 114-115 

88.  Equal    Equities 115-116 

89.  Where  One  of  the  Parties  Has  the  Legal  Es- 

tate    116-117 

40.  Superior   Equities 118 

41.  Superiority  of  Estate  Created  by  Trust  or  Con- 

tract     118-119 

42.  Equity  In  Specific  Thing 119-120 

43.  Equity  of  Party  Misled 120-122 

44.  Notice  of  an  Equity 122-123 

45-46.    Notice — Definition    123-125 

47-49.  Kinds  of   Notice l 125-126 

60.  Actual  Notice 127-135 

61.  Constructive  Notice 136-137 

62.  Possession  as  Constructive  Notice 137-143 

Constructive  Notice  by  Registration 144-148 

64.  Recitals  In  Title  Papers 148-150 

65.  Lli  Pendena ..151-155 


TABLE   OF   (mTENTS.  XI 


CHAPTER  VI. 

BONA  FIDE  PURCHASERS  WITHOUT  NOTICE. 

Section  Page 

50.     Doctrine  of  Bona  Fide  Purchase 166 

67.  Application  of  Doctrine 157-158 

68.  What  Constitutes  a  Bona  Fide  Purchase 158-164 


CHAPTER  VII. 

EQUITABLE  ESTOPPEL. 

59.  Definition    165-168 

60.  Fraud  as  a  Basis  of  Equitable  Estoppel 168-169 

61.  Essential  Elements 169-176 

62.  Operation  of  Estoppel 176-177 

63.  In  Whose  Favor  Estoppel  Does  Not  Operate 177-179 

CHAPTER  VIH. 

ELECTION. 

64-65.  Definition— Doctrine  of  Election 180-182 

66.  Election  under  or  against  the  Instrument 182-184 

67.  Application  of  Doctrine 184-185 

68.  Conditions  Necessitating  Election 185-190 

69.  Doctrine  when   Not  Applicable  to  Two  Distinct 

Gifts    190 

70.  Election  between  Dower  and  Testamentary  Gift.  .190-194 

71.  Manner  of  Making  an  Election 195-196 

72.  Ascertainment  of  Values 196-197 

73.  Ejection  by  Persons  under  Disabilities 197-198 

74.  Time  when  Election  must  be  Made 199 

75.  Effect  of  Election .-.199-200 


CHAPTER  IX. 

SATISFACTION  AND  PERFORMANCE. 

76.    Satisfaction— Definition   201-202 

77-78.  Admissibility  of  Parol  or  Extrinsic  Evidence. 202-203 

79.  Application  of  Doctrine 2O3-204 

80.  Satisfaction  of  Debts  by  Legacies 204-205 

81.  When  Presumption  of  Satisfaction  Will   Not 

Operate   205-207 

82.  Declared  Intention  of  Satisfaction  of  Debt. ..        207 


zii 


TABLE    OF    CONTESTS. 


Section  Page 

83.  Debt  Owing  to  Wife  or  Child 208 

84.  legacy  by  a  Creditor  to  His  Debtor 208-209 

85-88.  Satisfaction  of  Legacies  by  Subsequent  Legacies.  .209-211 

89.  Satisfaction  of  Legacies  by  Portions  or  Advance- 

ments     211-214 

90.  Person  in  Loco  Parentis 214-215 

91.  Presumption  in  Favor  of  Ademption 215-217 

92.  When  Satisfaction  must  h*  Expressed 217-219 

93.  Satisfaction  of  Portions  by  Legacies 219-220 

94.  Performance— Doctrine   Stated 220-221 

85.  Application  of  Doctrine 221-222 


CHAPTEB  X. 

CONVERSION  AND  RECONVERSION. 

96.  Equitable  Conversion  Defined 223-224 

97.  Application  of  Doctrine 224-226 

98.  Words  Sufficient  to  Effect  Conversion 226-228 

99.  Time  when  Conversion  Takes  Place 228-231 

100.     Effect  of  Conversion 232-235 

10L     Conversion  by  Paramount  Authority 235-238 

102-103.    Total  or  Partial  Failure  of  Purposes  for  Which 

Conversion  is  Directed 238-243 

104.    Double  Conversion 243-244 

106-106,    Reconversion    244-246 

CHAPTER  XL 

GROUNDS  OF  EQUITABLE  RELIEF— ACCIDENT. 

107.  Accident   Denned , 247-248 

108.  Right  to  Relief  because  of  Accident 248-250 

109.  Cases  in  Which  Relief  will  be  Afforded 250-254 

CHAPTER  xn. 

GROUNDS  OF  EQUITABLE  RELIEF— MISTAKE. 

110.  Definition    255-257 

111.  Classification   257 

112.  Mistake  of  Law 258-286 

113.  Mistake  of  Fact ;. .266-267 

114.  Classification    267 

116.  When  Mutual  or  Fundamental 267-271 

116.  Of  One  of  the  Parties  as  to  Subject-Matter.  .271-275 

117.  Mistake  of  Expression 275-281 

118.  Restoration  of  Parties 282 


TABLE    OF    CONTENTS. 


Xlll 


CHAPTER  XIII. 

GROUNDS  OF  EQUITABLE  RELIEF— FRAUD. 

Section  Page 

119.  Equitable  Jurisdiction  in  Cases  of  Fraud 283-280 

120.  What  Constitutes  Fraud 286-287 

121-124.     Classification  of  Fraud 287-288 

125.  Actual    Fraud 288 

126.  Misrepresentation    288-299 

127.  Fraudulent    Concealment 300-304 

128.  Remedies  of  Defrauded  Party 304-306 

129.  Constructive   Fraud 306-307 

129%.         Apparent  from  Nature  of  Bargain 307-314 

130.  Inferred  from  Condition  of  Parties 314-315 

131-132.            Transactions    with    Persons   Totally   or    Par- 
tially   Incapacitated 315-318 

133.  Transactions   with   Persons  under  Duress  or 

Undue    Influence 319-320 

134.  Transactions   between    Persons    in   Fiduciary 

Relationship    321-329 

135.  Gifts  between  Persons  in  Fiduciary  Relation- 

ship    330-332 

136.  Ratification,  Confirmation,  or  Acquiescence.  ..333-334 
137-139.  Fraud  upon  Third  Persons  not  Parties  to  the 

Contract    335 

140.  Frauds  upon  Creditors 335 

141.  Compositions   with    Creditors 336 

142-143.  Fraudulent    Conveyances 337 

144-145.  Creditor  to  be  Defrauded 337-339 

146.  Intent  to  Defraud 339-341 

147.  Transfer  of   Property 341-343 

148.  Fraud  on  Marital  Rights 343-344 

149.  Fraud  on  Powers..  ...344-345 


CHAPTER  XIV. 

EQUITABLE  PROPERTY— TRUSTS  GENERALLY— EXPRESS 

TRUSTS. 


150.     Definition  of  a  Trust 346-347 

151-153.     Historical    Statement 347-353 

154.  Classification  of  Trusts 353-354 

155.  Express  Private  Trusts 354 

156.  Express    Trusts — Parties 354 

157.  Who  may  be  a  Settlor 354-355 

158.  Who  may  be  a  Trustee 356-358 

159.  Who  may  be  a  Cestui  Que  Trust 358-359 

IttO.  Property  Subject  to  Trust 3HO-361 

161-162.  Creation    3U1-3W 


XIV  TABLE   OF   CONTENTS. 

Section  Page 

103.  Language  Creating  Trust 365-367 

164-168.  Precatory   Words 368-360 

167-169.  Enforcement  of  Voluntary  Trusts 370-375 

170-171;  Objects  of  Trusts 375-378 

172-174.     Executed  and  Executory  Trusts 378-381 

175.    Active  and  Passive  Trusts 381 

176-177.    Active   Trust 381-383 

178-179.    Passive  Trust 383-384 

180.  Assignment  for  Benefit  of  Creditors 384-385 

181.  Public  or  Charitable  Trusts— Objects 385-388 

182.  Characteristics    389-392 

183.  Cy-Pres  Doctrine 393-394 

184.  Charitable  Trusts  In  the  United  States 394-396 


CHAPTER  XV. 

IMPLIED  TRUSTS— RESULTING  AND  CONSTRUCTIVE. 

185.  Implied   Trusts— Definition 397-398 

186.  Resulting   Trusts 398 

187.  Classification   398-400 

188.  Where  Owner  of  Legal  and  Equitable  Estate 

Conveys  Legal  Title  Only 400-402 

189.  Arising  from  Failure  of  Express  Trusts 402-404 

190.  Conveyance  without  Consideration 404-405 

191.  Where  Purchase  is  in  Name  of  Another 405 

192.  Purchase  In  Name  of  Stranger 405-409 

193.  Purchase  In  Name  of  Wife,  Child,  or  Rela- 

tive    409-411 

194.  Constructive  Trusts 411-412 

195.  Purchases  with  Trust  Funds 413-415 

198.  Conveyance  of  Trust  Property  to  Volunteer  or 

Purchaser  with  Notice 415-416 

197.  Bequests     and     Devises     Obtained     through 

Fraud   417-418 


CHAPTER  XVI. 

POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES. 

198-190.  Acceptance  of  Trust 419-420 

200.  Paramount  Duty  of  Trustee 420-421 

201.  Duty  to  Acquire  Outstanding  Trust  Property 421-422 

202.  Duty  to  Exercise  Reasonable  Care 422-423 

203.  Delegation  of  Powers 423-425 

204.  Duty  to  Invest 428-428 

205.  Other  Duties   Respecting  Management  of   Trust 

Property   428-430 


TABLE    OF    CONTENTS.  XV 

Section  Page 

206.  Liability  for  Acts  of  Co-Trustee , 431-433 

207.  Compensation  and  Expenses  of  Trustee 433-435 

208-209.    Accounts  of  Trustees. 435-436 

210.    Following  Trust  Property 436-439 

211-212.    Breach  of  Trust 439-442 

213.    Removal  of  Trustee 442-444 


CHAPTER  XVII. 

MORTGAGES. 

214.  The    Common-Law    Doctrine    as    to    Real-Estate 

Mortgages    445  446 

215.  Equitable  Theory  of  a  Mortgage 446-452 

216-217.     Definition  of   Mortgage 452 

218.  Objects  of  Mortgage 453 

219.  Real-Estate   Mortgage — Absolute   Deed   as   Mort- 

gage    453-455 

220.  Conditional  Sale  as  Mortgage 456-457 

221-223.  Mortgage  to  Secure  Future  Advances. ...... .457-459 

224.  Assignment  of  Mortgage 459-460 

225.  Conveyance  of  Mortgaged  Premises 460-463 

226.  Foreclosure  of  Mortgage 463-466 

227-228.            Rights  and  Liabilities  of  Mortgagor  and  Mort- 
gagee     466-468 

229.  Redemption    468-472 

230-231.    Mortgages  and  Pledges  of  Personal  Property 472-473 


CHAPTER  XVITI. 

EQUITABLE  LIENS. 

232.  Definition  and  Nature 474-475 

233.  Equitable  Mortgages,  How  Created 475-479 

234-235.    Equitable   Liens  Arising  from  Considerations  of 

Justice    479-481 

236.  Equitable  Liens  Arising  from  Charges  by  Will  or 

Deed   481-484 

237.  Vendor's   Lien , 484-485 

238.  Under  Contracts  of  Sale 485-486 

239.  Arising  after  Conveyance  of  Land 486-490 


XVI 


TABLE    OF    CONTENTS. 


CHAPTER  XIX. 

ASSIGNMENTS. 

Section 

24O.    Assignments  at  Common  Law 491-493 

241-242.     Asslguability  of  Choses  in  Action 493-496 

243-244.  Equitable  Assignments — Possibilities  and  Expect- 
ancies— After-Acquired    Property 496-500 

245.  Order  upon  a  Fund 500-502 

240-247.  Notice  to  Debtor 503-504 

248.  Assignment  Subject  to  Equities 505-506 

CHAPTER  XX. 

REMEDIES  SEEKING  PECUNIARY  RELIEF. 

249.  Contribution   507-509 

250.  Exoneration   510-511 

251.  Subrogation   511-513 

252.  Marshaling  513-516 

253.  Accounting   516-517 

254.  When  Equity  will  Assume  Jurisdiction 517-520 

2T>5.  Defense  of  Stated  Account 520-521 

256.  Application  of  Payments 521-524 

CHAPTER  XXI. 

SPECIFIC  PERFORMANCE. 

267-258.  Definition— Equity   Jurisdiction 625-526 

2f>9.  Inadequacy  or  Impracticability  of  Damages 526-529 

2<>0.  The  Exercise  of  Jurisdiction  Is  Discretionary 529-530 

261.  Contracts  for  Performance  of  Personal   Acts 531-533 

2(52.  Specific  Performance  Is  Against  the  Person 533-534 

263.  Defenses  In  Actions  for  Specific  Performance — In- 

capacity  of   Parties 534-535 

264.  Nonconcluslon  of  the  Contract 535 

2<i5.  Want  of  Mutuality 536-537 

266.  Want  of  Fairness 537-538 

267.  Hardship  of  the  Contract 539 

268.  Inadequacy  of  Consideration 539-541 

2«».  Lapse  of  Time 541-542 

270.  Fraud  and  Mistake 542-543 

27L  Uncertainty  of  Contract 543-545 

272.  Want  of  Title 545-548 

273.  Default  of  Plaintiff 648-549 

274.  Failure  to  Perform  within  the  Time 549-551 

275.  Statute  of  Frauds  as  a  Defense 551  -557 

170-277.     Speclnc  Performance  with  a  Yuriai.ee 558-562 


TABLE    OF   CONTENTS. 


XV11 


CHAPTER 


INJUNCTION. 
Section 
278.     Definition    ......................................  563-564 

279-281.     Classification    ............................  .  .....  564-566 

282.  Principles  Governing  Jurisdiction  ................  566-568 

283.  When  Injunction  will  be  Granted  —  Classification..        568 

284.  Injunction  against  a  Legal  Proceeding  ...........  569-572 

285.  Injunction  to  Prevent  Breach  of  Contract  ........  573-577 

286-287.     Injunctions  to  Prevent  Torts  .  ...................  577-579 

288.  Protection  of  Other  than  Property  Rights.  ..579-581 

289.  Protection    of    Real    Property  —  Waste,    Tres- 

pass, and  Nuisance  .......................  582-594 

290.  Protection  of  Patents,  Copyrights,  and  Trade- 

Marks    ...................................  595-600 

291.  Injunctions  against  Breach  of  Trust  and  Violation 

of  Equitable  Rights  ...........................  600-601 

292.  Injunctions  in  Matters  of  Taxation  ..............  601-603 

293-294.    Injunctions  against  Public  Officers  and  Municipal- 

ities   .........................................  603-605 


CHAPTER  XXIII. 

PARTITION,  DOWER,  AND  ESTABLISHMENT  OP 
BOUNDARIES. 

295,     Partition— Definition    606 

296-297.  Jurisdiction  in  Equity — Modern  Statutes 607-609 

298-299.  Procedure  in  Equity 609-611 

300.  Who  Entitled  to  Partition 611-612 

301.  What  is  Subject  to  Partition 613-614 

302.  Allowance  for  Improvements 614-615 

803-304.     Assignment  of  Dower 615-616 

305.     Establishment  of  Boundaries 617 


CHAPTER  XXIV. 

REFORMATION,  CANCELLATION,  AND  CLOUD  ON  TITLE. 

306.  Reformation    618-619 

307.  Mistake   or  Fraud 619-621 

808-309.  By  and  against  Whom  Reformation  may  be 

Had    621-622 

810-311.  Evidence— Statute  of  Frauds 622-624 

312.  Cancellation     625-626 

313.  Cloud  on  Title 626-627 

814.  When  Suit  may  be  Maintained 627-629 

EATON.EQ.— b 


IV111  TABLE   OF   CONTENTS. 


CHAPTER  XXV. 

ANCILLARY  REMEDIES. 

Boctloa  Page 

315.    Bill  of  Discovery 630-633 

816-320.    Rules  Respecting  Discovery 633-635 

321.  Bills  to  Perpetuate  Testimony 636-637 

322.  Examination  of  Witnesses  De  Bene  Esse 637-638 

323.  Writ  of  Ne  Exeat 638-639 

324.  Interpleader    639-641 

325.  Essential   Features 641-645 

326.  Receivers    645-646 

827.  In  what  Cases  Receivers  will  be  Appointed.  .647-652 


HANDBOOK 


OF 


EQUITY  JURISPRUDENCE 


CHAPTER  I. 
ORIGIN  AND  HISTORY. 

1.  Distinction  Between  Equity  and  Law— History. 

2.  Causes  of  the  Existence  of  the  Equity  Jurisdiction. 
8.     Separate  Equitable  Tribunals  Abolished. 

4.    Equity  Jurisdiction  In  the  United  States. 

DISTINCTION  BETWEEN  EQUITY  AND  LAW- 
HISTORY. 

1.  The  distinction  between  equity,  in  a  technical 
sense,  and  law,  is  a  matter  not  so  much  of 
substance  or  principle  as  of  form  and  his- 
tory.1 

Equity,  in  its  technical  sense,  as  used  in  connection  with 
that  system  of  law  known  as  "equitable  jurisprudence," 
means  neither  natural  justice  nor  even  that  kind  of  natural 
justice  which  is  capable  of  being  judicially  enforced.  There 
are  many  matters  of  natural  justice  which  cannot  be,  or  at 
least  are  not,  enforced  in  any  court,  either  because  of  the 
difficulty  of  framing  general  rules  to  meet  them,  or  from  the 
doubtful  policy  of  attempting  to  give  a  legal  sanction  to  du- 

|  1.     i  Snell,  Eq.  p.  3. 

.— 1 


2  ORIGIN    AND    HISTORY.  (Oh.    1 

ties  of  imperfect  obligation,  such  as  charity,  gratitude,  and 
kindness.2  Even  positive  contract  obligations  barred  by  the 
statute  of  limitations,  and  promises  not  founded  on  a  valid 
consideration,  are  not  enforceable,  either  at  law  or  in  equity.* 
So,  too,  the  administration  of  natural  justice  lies  largely 
within  the  competency  of  courts  of  law,  which  often  proceed, 
as  far  as  the  nature  of  the  remedies  they  administer  will  per- 
mit, on  the  same  doctrines  as  courts  of  chancery.  Natural 
justice,  or  equity,  in  its  larger  meaning,  is  often  covered  by 
legislative  enactments,  and  to  that  extent  is,  therefore,  ex- 
cluded from  equity  in  a  technical  sense. 

It  is  in  view  of  these  facts  that  equity,  as  used  in  the  lan- 
guage of  English  law,  has  been  so  often  defined,  or  rather 
described,  by  modern  equity  writers,  as  being  that  kind  of 
natural  justice  which,  though  of  such  a  nature  as  properly 
to  admit  of  being  judicially  enforced,  is  not  enforced  by  com- 
mon-law courts, — an  omission  which  is  supplied  by  the  courts 
of  equity.4 

«  Snell,  Eq.  p.  1;  1  Beach,  Mod.  Eq.  Jur.  p.  2,  citing  Rees  v.  City 
of  Watertown,  19  Wall.  121,  19  L.  Ed.  541;  Haynes,  Eq.  (5th  Ed.) 
p.  7;  Smith,  Eq.  (15th  Ed.)  p.  3;  Story,  Eq.  Jur.  §  2;  Green  v.  Lyon, 
21  Wkly.  Rep.  830. 

s  Forster  v.  Ulman,  04  Md.  526,  3  Atl.  113;  Dunphy  v.  Ryan,  116 
U.  S.  498,  6  Sup.  Ct.  486,  2  L.  Ed.  703,— where  the  court  held  the 
statute  of  frauds  to  be  as  binding  on  courts  of  equity  as  on  courts 
of  law,  except  when  it  Is  being  used  as  an  instrument  of  fraud. 

*  See  Malt.  Justice,  38,  39;  Snell,  Eq.  p.  2;  Haynes,  Eq.  p.  7. 
Pom.  Eq.  Jur.  $  67,  defines  equity  as  "those  doctrines  and  rules, 
primary  and  remedial  rights  and  remedies,  which  the  common 
law,  by  reason  of  its  fixed  methods  and  remedial  system,  was 
either  unable  or  inadequate,  In  the  regular  course  of  Its  develop- 
ment, to  establish,  enforce,  and  confer,  and  which  It  therefore 
either  tacitly  omitted  or  openly  rejected."  Bigelow,  Eq.  p.  9,  says: 
"The  Jurisdiction  of  courts  of  chancery  now  extends  to  all  civil 
cases  proper  In  good  conscience  and  honesty  for  relief  or  aid  as 
to  which  the  procedure  of  the  common-law  courts  is  unsuited  to 
give  an  adequate  remedy,  or  as  to  which  the  common-law  courts, 
when  able  to  extend  their  aid,  have  refused  to  do  so."  Judge 
Phelps,  of  Baltimore,  Md.,  defines  equity  as  follows:  "By  Jurid- 
ical equity  is  meant  a  systematic  appeal  for  relief  from  a  cramped 
administration  of  defective  laws  to  the  disciplined  conscience  of  a 
competent  magistrate,  applying  to  the  special  circumstances  of 
defined  and  limited  classes  of  civil  cases  the  principles  of  nat- 
ural Justice,  controlled  in  a  measure  as  well  by  considerations  of 


§    1)       DISTINCTION  BETWEEN  KQUITY  AM)  LAW HISTORY. 

It  may  be  easily  seen  that  this  definition  or  description  is 
meaningless  without  some  knowledge  or  understanding  of 
the  origin  and  development  of  the  extraordinary  jurisdiction 
of  the  English  court  of  chancery,  and  the  relation  it  bore  to 
the  English  judiciary.  The  importance  of  the  history  of  the 
court  of  chancery  is  not  diminished  by  the  supreme  court  ju- 
dicature act  of  1873  and  its  amendments,  which  abolished  the 
distinction  between  courts  of  equity  and  courts  of  law.  By 
that  act  equitable  principles  were  preserved,  and  applied  to 
the  administration  of  justice  in  all  courts.  Nor  is  this  his- 
tory of  less  importance  to  the  student  of  equity  as  it  exists 
in  the  courts  of  our  own  country.  In  a  comparatively  re- 
cent case  in  the  United  States  supreme  court  it  was  held  that 
the  equity  jurisdiction  conferred  on  the  federal  courts  is  the 
same  as  that  possessed  by  the  high  court  of  chancery.6  One 
of  the  rules  of  the  supreme  court,  made  under  the  authority 
of  an  act  of  congress,  is  that,  when  not  otherwise  directed, 
the  practice  in  the  high  court  of  chancery  in  England  shall 
be  followed.* 

In  many  of  the  states  the  common  law  and  chancery  juris- 
diction is  exercised  by  the  same  courts,  but  without  chang- 
ing the  essential  distinction  between  legal  and  equitable  prin- 
ciples ; 7  in  other  states  separate  common-law  and  equity 
tribunals  have  been  retained ;  while  in  others  equitable  prin- 
ciples are  administered  by  means  of  common-law  or  statu- 
tory forms.  In  the  courts  of  all  these  states  equitable  prin- 

public  policy  as  by  established  precedent  and  by  positive  pro- 
visions of  law."  Phelps,  Jud.  Eq.  p.  192.  Story,  Eq.  Jur.  §  25, 
says  that  "equity  jurisprudence  may  properly  be  said  to  be  that 
portion  of  remedial  justice  which  is  exclusively  administered  by  a 
court  of  equity,  as  contradistinguished  from  that  portion  of  reme- 
dial justice  which  is  exclusively  administered  by  a  court  of  com- 
mon law."  Bisp.  Eq.  p.  1,  states  that  equity  "is  that  system  of  jus- 
tice which  was  administered  by  the  high  court  of  chancery  in  Eng- 
land in  the  exercise  of  its  extraordinary  jurisdiction." 

e  Mississippi  Mills  v.  Conn,  150  U.  S.  202,  205,  14  Sup.  Ct  75, 
76,  37  L.  Ed.  1052.  See,  also,  Payne  v.  Hook,  7  Wall.  425,  430,  19 
L.  Ed.  260;  Kirby  v.  Railroad  Co.,  120  U.  S.  130,  138,  7  Sup.  Ct 
430,  30  L.  Ed.  5G9. 

0  Bein  v.  Heath.  12  How.  168,  13  L.  Ed.  939;    Pennsylvania  v. 
Bridge  Co.,  13  How.  518,  14  L.  Ed.  249;   Wells  v.  Pierce,  27  N.  H. 
603. 

1  Basey  v.  Gallagher,  20  Wall.  670,  22  L.  Ed.  452. 


4  OIUGIM    AND    HISTORY.  (Cb.   1 

ciples,  as  administered  by  the  chancery  courts  in  England, 
are  still  recognized  and  applied,  unless  inconsistent  with  the 
statutes  and  constitutions  of  the  states.* 

The  Judiciary  of  Early  Norman  England. 

The  general  scheme  of  judicial  organization  existing  dur- 
ing the  reign  of  William  the  Conqueror  did  not  differ  ma- 
terially from  what  it  had  been  under  Edward  the  Confessor, 
prior  to  the  Norman  conquest.  The  shire  or  county  courts, 
the  hundred  motes  and  borough  courts,  together  with  the 
hall  motes,  manor  courts,  or  courts  baron  of  the  king  and  of 
the  Norman  lords,  continued  to  be  the  ordinary  courts  of 
civil  jurisdiction.  But  the  supreme  judicial  authority  was 
vested  in  the  king,  assisted  by  his  councils.  William  ap- 
pointed a  chief  justiciary  to  preside  over  all  pleas  and  suits 
heard  in  the  curia  regis,  which  then,  and  for  a  considerable 
time  afterwards,  was  a  body  composed  of  barons  and  high 
ecclesiastics  with  legislative,  judicial,  and  administrative  func- 
tions. Prof.  Pomeroy,  in  his  treatise  on  Equity  Jurispru- 
dence,* says  that  this  creation  of  a  permanent  judicial  officer 
was  the  germ  of  the  professional  common-law  tribunals  hav- 
ing a  supreme  jurisdiction  throughout  England,  which  sub- 
sequently became  established  as  a  part  of  the  government, 
distinct  from  the  legislative  and  the  executive. 

The  judicial  business  of  the  curia  regis  was  not  separated 
from  the  legislative  until  the  reign  of  Henry  II.  This  was 
done  by  assigning  the  legal  work  to  certain  members  of  the 
king's  court  or  council,  who  formed  what  was  called  the 
"aula  regis."  From  the  time  of  this  separation  until  the 
enactment  of  the  supreme  court  judicature  act  of  1873,  the 
aula  regis,  or,  as  it  was  afterwards  called,  the  "court  of  the 
king's  bench,"  continued  to  be  the  highest  common-law  tri- 
bunal of  original  jurisdiction. 

William  the  Conqueror  appointed,  as  occasion  required 
it,  certain  of  his  justices  to  preside  over  the  county  or  hun- 
dred courts  of  the  several  provinces,  and  suits  which  would 
otherwise  have  been  tried  in  the  king's  court  were  trans- 

•  Jones  v.  Mill  Corp.,  4  Pick.  (Mass.)  607,  16  Am.  Dec.  358; 
Tlrrell  v.  Merrill,  17  Mass.  117;  Well*  v.  Pierce,  27  N.  H.  503;  Boyd 
T.  Dowie,  65  Barb.  (N.  Y.)  237. 

'  1  Pom.  Eq.  Jnr.  f  11. 


§    1)      DISTINCTION  BETWEEN  EQUITY  AND  LAW HISTORY.  5 

ferred  to  the  courts  so  constituted.9  These  justices  were 
nominally  the  king's  representatives,  and  were  appointed  to 
administer  or  superintend  the  administration  of  justice ;  but 
they  were  really  in  many  cases  the  instruments  of  extortion 
and  injustice.  Following  this  practice,  itinerant  justices  or 
justices  in  eyre  were  occasionally  appointed  by  Henry  I.  to 
go  from  county  to  county  to  hold  pleas,  civil  and  criminal. 
This  practice  became  permanent  in  the  reign  of  Henry  II.1* 

Justices  of  assize  and  nisi  prius  and  of  gaol  delivery  were 
appointed  in  the  reign  of  E'dward  I.  to  hold  sessions  of  jus- 
tice in  the  provinces.  Additional  powers  were  given  to  these 
justices,  and  improvements  made  in  their  proceedings,  which 
superseded  the  necessity  of  the  appointment  of  justices  in 
eyre,  and  none  were  appointed  after  the  tenth  year  of  the 
reign  of  Edward  III.  As  a  consequence  of  these  changes  in 
the  administration  of  justice  in  the  provinces,  almost  all  the 
judicial  business  of  the  county  was  driven  into  the  king's 
court,  and  the  county  and  hundred  courts  ceased  to  exist  for 
the  purpose  of  determining  controversies  between  litigants.11 

The  king's  court  followed  the  king  in  his  journeys  to  dif- 
ferent parts  of  his  kingdom.  This  resulted  in  great  incon- 
venience to  suitors,  which  was  sought  to  be  remedied  by 
one  of  the  articles  of  Magna  Charta,  which  declared  that 
common  pleas  should  no  longer  follow  the  king.  Thence- 
forth justices  were  appointed  expressly  to  hear  and  deter- 
mine pleas  of  land,  and  injuries  merely  civil,  which  were 
known  as  "common  pleas."  This  branch  of  the  king's  court 
was  fixed  at  Westminster,  and  dates  the  origin  of  the  court 
of  common  pleas.11 

Perhaps  the  oldest  of  all  courts  emanating  from  the  curia 
or  aula  regis  was  the  exchequer.  This  was  a  board  or  court 

•  1  Spence,  Eq.  Jur.  p.  101. 

10  Spence,  Eq.  Jur.  p.  115.    Henry  II.  divided  the  kingdom  into 
six  parts,  and  chose  as  justices  prudent  and  discreet  men.    These 
Justices  went  from  county  to  county,  and  held  pleas,  civil  as  well 
as  criminal.     The  justices  in  eyre  heard,  among  others,  common 
pleas  in  their  courts.    There  was  an  appeal  from  their  decisions 
to  the  king's  court.    In  all  cases  they  had  to  give  an  account  of 
their  proceedings,  which,  for  this  purpose,  was  regularly  entered 
on  the  rolls.    Id. 

11  Speuce,  Eq.  Jur.  p.  116.  * 
is  Speuce,  Eq.  Jur.  pp.  113,  114. 


6  ORIGIN    AND    HISTORY.  (Ch.   1 

established  by  William  the  Conqueror  to  superintend  and 
manage  the  royal  revenues.  To  this  board  or  court  were 
added  the  chief  justiciary,  and  the  chancellor,  and  such  bar- 
ons and  dignitaries  of  the  church  as  the  king  selected  for  the 
purpose,  who  attended  to  judge  the  law  and  determine  all 
matters  of  doubt.  At  first  the  jurisdiction  of  this  court  was 
confined  to  the  decision  of  causes  connected  with  the  rev- 
enues, but  its  authority  was  subsequently  enlarged  by  the 
use  of  a  legal  fiction,  the  plaintiff  being  permitted  to  allege 
that  he  was  a  debtor  to  the  crown,  and  the  aid  of  the  court 
was  invoked  to  enable  him  to  recover  from  the  defendant 
what  would  enable  him  to  pay  his  debt  to  the  crown.13  In 
this  way,  to  a  certain  extent,  the  jurisdiction  of  the  court  of 
exchequer  became  concurrent  with  that  of  the  other  superior 

law  courts. 

i 

The  Court  of  CJiancery. 

The  court  of  chancery,  in  the  exercise  of  its  ordinary  or 
common-law  jurisdiction,  is  of  very  high  antiquity.  When 
the  aula  regis,  or  king's  court,  was  broken  into  pieces,  and 
its  jurisdiction  distributed  among  the  several  courts  as  above 
designated,  the  court  of  chancery  received  its  portion.  But 
at  that  time  it  is  apparent  that  the  court  of  chancery  did  not 
exist  as  a  court  of  equity  as  distinguished  from  a  court  of 
law.14  Under  the  early  Norman  kings  there  existed  a  se- 
lect council,  always  in  attendance  on  the  king's  person,  cor- 
responding to  what  is  now  termed  the  "privy  council."  This 
select  council  consisted  of  certain  great  officers,  who  were 
members  ex  oiTicio, — as  the  chancellor,  treasurer,  grand  jus- 
ticiary, and  justices  of  the  other  courts,  and  such  others, 
usually  barons,  earls,  and  bishops,  as  the  king  might  name. 
In  early  times — probably  down  to  the  time  of  Edward  III. — 
this  council,  presided  over  by  the  king  himself,  discussed  and 
decided  upon  applications  for  the  exercise  of  the  royal  pre- 
rogative in  regard  to  matters  of  judicial  cognizance,  crim- 

»«  Spence,  Eq.  Jur.  pp.  102,  114. 

»«  Story,  Eq.  §  39,  where  it  Is  said  that  among  the  earliest  writ- 
era  of  the  common  law,  such  as  Bracton,  Glanvil,  Britton,  and 
Fleta,  there  is  not  a  syllable  to  be  found  relating  to  the  equitable 
Jurisdiction  of  the  court  of  chancery. 


§    1)       DISTINCTION  BETWEEN  EQUITY  AND  LAW HISTORY.  7 

inal  and  civil.18  The  great  council  of  the  -king,  which  after- 
wards became  parliament,  also  possessed  and  exercised  on 
petition  certain  judicial  functions.  If  it  were  impossible  for 
the  applicants  and  petitioners  to  obtain  a  remedy  in  the  com- 
mon-law courts,  their  applications  and  petitions  were  trans- 
mitted to  the  councils.10  It  is  apparent  that  the  chancellor 
was  the  principal  officer  with  reference  to  the  judicial  busi- 
ness which  the  select  council,  as  well  as  the  great  council, 
had  to  advise  upon  or  transact.  It  early  became  the  custom 
of  the  king  to  send  certain  petitions  addressed  to  him,  pray- 
ing for  extraordinary  remedies,  to  the  chancellor  and  master 
of  the  rolls,  or  to  the  chancellor  alone.  When  the  chancel- 
lor administered  relief  independently  of  the  council,  it  was 
by  express  delegation  from  the  king,  and  given,  as  it  would 

IB  "This  council  had  an  absolute  Jurisdiction  over  all  the  proceed- 
ings in  the  courts  below.  *  *  *  If  any  litigant  felt  himself 
aggrieved,  he  applied  for  redress  to  the  council  in  the  same  manner 
as  he  would  have  applied  to  the  king  before  the  latter  committed 
his  prerogative  of  distributing  Justice  and  equity  to  his  council." 
Hardy,  Introduction  to  Close  Rolls,  p.  26.  Hallam,  speaking  of  the 
ordinary  functions  of  the  select  or  privy  council  of  the  king,  says: 
"The  business  of  this  council  out  of  parliament  may  be  reduced  to 
two  heads, — its  deliberative  office,  as  a  council  of  advice,  and  Its 
decisive  power  of  Jurisdiction.  With  respect  to  the  first,  it  ob- 
viously comprehended  all  subjects  of  political  deliberation,  which 
were  usually  referred  to  it  by  the  king;  this  being  in  fact  the 
administration  or  governing  council  of  state,  the  distinction  of 
a  cabinet  being  introduced  in  comparatively  modern  times.  But 
there  were  likewise  a  vast  number  of  petitions  continually  pre- 
sented to  the  council  upon  which  they  proceeded  no  further  than 
to  sort,  as  it  were,  and  forward  them  by  indorsement  to  the 
proper  courts,  or  advise  the  suitor  what  remedy  he  had  to  seek. 
Thus,  some  petitions  are  answered,  This  cannot  be  done  without  a 
new  law;'  some  were  turned  over  to  the  regular  courts,  as  the  chan- 
cery or  king's  bench;  some  of  greater  moment  were  indorsed  to  be 
heard  'before  the  great  council';  some  concerning  the  king's  inter- 
est were  referred  to  the  chancery  or  select  persons  of  the  council." 
Hallam,  Middle  Ages,  c.  8,  pt.  3;  Hale,  Lords'  House  In  Parlia- 
ment, p.  26. 

i«  If  the  matter  were  remediable  at  law,  and  there  were  no  obsta- 
cles to  the  remedy  being  obtained,  the  petitioner  was  sent  to  the 
common-la w  courts;  if  it  were  a  matter  of  revenue,  he  was  sent 
.to  the  exchequer;  if  the  matter  related  to  the  king's  grants,  or 
was  cognizable  under  the  chancellor's  ordinary  Jurisdiction,  lie 
was  sent  to  the  chancery.  Spence,  Eq.  Jur.  p.  332. 


8  ORiaiN    AND   HISTORY.  (Ch.    1 

seem,  by  the  advice  of  the  council.1*  Gradually  judicial  busi- 
ness of  the  council  of  a  civil  nature  was  assumed  by  the  chan- 
cellor as  the  keeper  of  the  king's  conscience,  and  its  chief 
judicial  officer.  The  inadaptability  of  the  council  for  the 
transaction  of  judicial  business  made  easier  this  assump- 
tion.1* The  exercise  of  judicial  functions  by  the  king,  the 
select  or  privy  council,  and  the  great  council  or  parliament 
makes  clear  the  fact  that  the  common-law  courts  were  in- 
sufficient, even  in  their  infancy,  for  the  needs  of  the  country, 
and  that  there  were  civil  rights  which  such  courts  could  not 
protect. 

The  earliest  general  reference  to  petitions  to  the  chancel- 
lor is  found  in  an  ordinance  of  8  Edw.  I.,  in  the  year  1280, 
complaining  of  the  multitude  of  petitions  presented  to  the 
king  which  could  properly  be  dealt  with  by  the  chancellor 
and  judges,  and  providing  that  all  petitions  that  touch  the 
seal  shall  go  first  to  the  chancellor,  and  those  relating  to  oth- 
er subjects  shall  go  to  the  exchequer,  the  justices,  and  other 
tribunals,  according  to  their  nature.19  It  thus  appears  that 
during  the  reign  of  Edward  I.  it  was  not  yet  a  fixed  practice 
to  send  to  the  chancellor  all  petitions  coming  before  the  king 
or  his  councils  which  could  not,  in  the  first  instance,  go  to 
the  common-law  courts.  But  the  practice  of  delegating 
cases  coming  within  the  prerogative  judicial  jurisdiction  of 
the  crown  and  its  councils  to  the  chancellor  for  his  sole  de- 
cision, having  once  commenced,  rapidly  grew  until  it  be- 
came the  common  method  of  dealing  with  such  controversies. 

In  the  reign  of  Edward  III.  the  court  of  chancery,  as  a 
court  of  ordinary  jurisdiction,  became  of  great  importance. 
But  the  chancellor,  in  the  exercise  of  his  common-law  or  or- 

»»  Spence,  Eq.  Jur.  p.  335. 

18  It  is  probable  that  the  judicial  power  of  the  chancellor  as  a 
law  judge,  and  his  consequent  familiarity  with  the  laws  of  the 
realm,  and  experience  in  adjudicating,  were  the  reasons  why  any 
case  which  appealed  to  the  king's  judicial  prerogative,  and  which 
for  any  cause  could  not  be  properly  examined  by  the  council,  was 
naturally  referred  either  by  the  crown  or  the  council  to  the  chan- 
cellor for  his  sole  decision.  Whatever  may  have  been  the  motives, 
It  is  certain  that  the  chancellor's  equitable  jurisdiction  commenced 
in  this  manner.  Pom.  Eq.  Jur.  |  33. 

i»  Hardy,  Introduction  to  Close  Rolls,  p.  28;    2  Stubbs,   Const 
Hist  Eng.  p.  203. 


§    1)       DISTINCTION  BETWEEN  EQUITY  AND  LAW HISTORY.  9 

dinary  jurisdiction,  could  not  advert  to  matters  of  conscience. 
It  would,  nevertheless,  seem  that  it  was  during  this  reign 
that  the  court  of  chancery  first  existed  as  a  distinct  court  for 
giving  relief  in  cases  which  required  extraordinary  remedies. 
Edward  III.  was  a  busy  king,  engaged  in  numerous  foreign 
enterprises,  and  therefore  unable  to  attend  to  the  many  peti- 
tions which  were  presented  to  him ;  consequently,  in  the 
twenty-second  year  of  his  reign,  he,  by  a  writ  or  ordinance, 
referred  all  matters  as  were  of  grace  to  be  dispatched  by  the 
chancellor,  or  the  keeper  of  the  privy  seal.  It  is  generally 
considered  that  the  court  of  chancery  owes  its  existence  as  a 
regular  court  for  administering  extraordinary  relief  and  equi- 
table remedies  to  this  or  a  similar  ordinance.20  It  does  not 

20  Spence,  Eq.  Jur.  p.  337.  Story  quotes  Wooddeson  as  deducing 
the  jurisdiction  from  the  same  source,  laying  great  stress  on  the 
ordinance  above  referred  to,  and  also  on  the  statute  of  36  Edw.  III. 
(Stat.  I.  c.  9),  which  he  considers  as  referring  many  things  to  the 
sole  and  exclusive  cognizance  of  the  chancellor.  And  he  adds 
that  it  seems  incontrovertible  that  the  chancery  exercised  an  eq- 
uitable jurisdiction,  though  its  practice  was,  perhaps,  not  very 
flourishing  or  frequent,  throughout  the  reign  of  Edward  III.  Story, 
Eq.  (13th  Ed.)  §  45.  S.  Newham  Davis  says  (Origin  and  Nature  of 
Equity,  2  Jurist,  26):  "In  1348,  by  the  writ  of  22  Edw.  III.,  It  was 
enacted  that  all  matters  of  grace  and  favor  were  to  be  referred  to 
the  chancellor,  and  to  be  dispatched  either  by  him  or  the  keeper 
of  the  privy  seal.  This  was  the  great  step  which  recognized  the 
equitable,  as  opposed  to  the  legal,  jurisdiction  of  the  court  of 
chancery,  although  the  distinction  was  not  finally  established  until 
the  following  reign.  From  this  date  the  chancellor  possessed  an 
independent  as  well  as  separate  jurisdiction."  The  ordinance  or 
proclamation  above  referred  to  ran  as  follows:  "The  king  to  the 
sheriffs  of  London,  greeting:  For  as  much  as  we  are  greatly  and 
daily  busied  In  various  affairs  concerning  us  and  the  state  of  our 
realm  of  England,  we  will  that  whatsoever  business,  relating  as 
well  to  the  common  law  of  our  kingdom  as  our  special  grace, 
cognizable  before  us,  from  henceforth  be  prosecuted  as  followeth, 
viz.:  The  common  law  business,  before  the  Archbishop  of  Canter- 
bury elect,  our  chancellor,  by  him  to  be  dispatched;  and  the  other 
matters,  grantable  by  our  special  grace,  be  prosecuted  before  our 
said  chancellor  or  our  well  beloved  clerk,  the  keeper  of  the  privy 
seal,  so  that  they,  or  one  of  them,  transmit  to  us  such  petitions  of 
business  which  without  consulting  us  they  cannot  determine, 
together  with  their  advice  thereupon,  without  any  further  prosecu- 
tion to  be  had  before  us  for  the  same;  that  upon  inspection  thereof 
we  may  further  signify  to  the  aforesaid  chancellor  or  keeper  our 
will  and  pleasure  therein;  and,  that  none  other  do  for  the  future 


10  ORIGIN    AND    HISTORY.  (Ch.   1 

appear,  however,  that  matters  of  grace,  involving  equitable 
relief  and  remedies,  were,  at  this  time,  exclusively  sent  to  the 
chancellor.  The  great  council,  or  parliament,  and  the  privy 
council  still  exercised  an  equitable  jurisdiction  by  delegation 
from  the  sovereign.  From  this  time  suits  were  brought  be- 
fore the  chancellor  by  petition  or  bill,  without  any  prelimi- 
nary writ.  If,  on  the  presentation  of  such  petition  or  bill, 
the  case  called  for  extraordinary  interference,  a  writ  was  is- 
sued on  the  command  of  the  chancellor,  but  in  the  name  of 
the  king,  by  which  the  party  complained  against  was  sum- 
moned to  appear  before  the  court  of  chancery  to  answer  the 
complaint  and  abide  by  the  order  of  the  court.21  In  the 
reign  of  Edward  III.  the  court  of  chancery  ceased  to  follow 
the  king.22 

It  was  during  the  reign  of  Richard  II.  that  the  court  of 
chancery  was  established  as  a  distinct  and  permanent  court, 
having  a  separate  jurisdiction,  with  its  own  peculiar  mode  of 
procedure.28  From  the  time  of  the  reign  of  Henry  VI.  the 
equity  jurisdiction  of  the  court  constantly  grew  in  impor- 
tance, and  in  the  reign  of  Henry  VIII.  it  expanded  into  a 
broad,  and  almost  boundless,  jurisdiction  under  the  fostering 
care,  the  ambitious  wisdom,  and  love  of  power  of  Cardinal 
Wolsey.84 

pursue  such  kind  of  business  before  us,  we  command  you  Imme- 
diately upon  sight  hereof  to  make  proclamation  of  the  premises." 
1  Story,  Eq.  Jur.  (13th  Ed.)  44,  note 

«i  Spence,  Eq.  Jur.  p.  338. 

«  Spence,  Eq.  Jur.  p.  340;  Parke,  Hist  Court  of  Chancery,  p.  34. 

*s  Story,  Eq.  Jur.  46.  By  the  statute  17  Rich.  II.  c.  6,  It  was 
enacted  that,  where  persons  were  compelled  to  appear  before  the 
council  or  the  chancery  on  suggestions  found  to  be  untrue,  the 
chancellor  should  have  power  to  award  damages  according  to  his 
discretion.  From  the  time  of  the  passing  of  this  statute  the  court 
of  chancery  was  established  as  a  distinct  and  permanent  court, 
having  a  separate  Jurisdiction.  Spence,  Eq.  Jur.  p.  345.  This  stat- 
ute was  a  solemn  recognition  by  parliament  of  the  court  as  a  dis- 
tinct and  permanent  tribunal,  having  a  separate  Jurisdiction,  and 
Its  own  modes  of  procedure  and  of  granting  relief;  and  the  enact- 
ment was  an  Important  event  In  the  legal  history  of  the  chancery. 
Pom.  Eq.  Jur.  §  37. 

*«  Story,  Eq.  Jur.  (13th  Ed.)  §  51.  See,  also,  3  Reeve,  Hist.  Eng. 
Law,  379^382. 


§   2)          CAUSES    OF    EXISTENCE   OF    EQUITY   JURISDICTION.  11 


CAUSES  OF  THE  EXISTENCE    OF  THE    EQUITY 
JUBISDICTION. 

2.  The  equitable  jurisdiction  of  the  court  of  chan- 
cery owes  its  origin  to 

(a)  The  inflexibility  and  rigidity  of  the  common 
law, 

(Tt>)  The  inelasticity  of  the  common-law  system 
of  procedure,  and 

(c)  The  ineffectiveness  or  Inadequacy  of  the  rem- 
edies provided  by  the  common  law. 

Inflexibility  of  the  Common  Law. 

It  is  frequently  asserted  that  the  principles  of  common 
law  are  founded  on  reason  and  equity.  Doubtless  this  is,  in  a 
sense,  true.  So  long  as  the  common  law  was  in  the  course  of 
formation,  it  was  not  only  susceptible  of  application  to  cases 
within  the  spirit  of  existing  law,  but  not  expressly  provided 
for,  but  also  of  being  applied  in  accordance  with  the  princi- 
ples of  equity  as  subsequently  known.  But  precedents  es- 
tablished by  the  decisions  of  the  judges  soon  came  to  be 
considered  as  of  binding  authority  on  succeeding  judges. 
Hence,  early  in  its  history  the  English  common  law  became 
essentially  a  lex  scripta,  positive  and  inflexible ;  and,  although 
new  principles  have  ever  continued  to  be  made,  the  rules  of 
practice  have  not  accommodated  themselves  to  the  exigen- 
cies of  new  circumstances  and  new  cases.1 

Had  it  not  been  for  the  blind  conservatism  of  the  courts  of 
king's  bench,  common  pleas,  and  exchequer  in  their  regard 
for  the  "rules  and  doctrines  once  formulated  by  precedents, 
and  their  inability  and  unwillingness  to  furnish  remedies  for 
such  wrongs  as,  by  their  nature,  would  permit  of  redress,  the 
reserve  jurisdiction  of  the  king's  council  would  probably  not 

§  2.  i  Spence,  Eq.  Jur.  p.  321.  The  creation  of  equity  arose  out 
of  the  inability  of  courts  of  law,  through  the  inflexibility  of  their 
rules  and  want  of  power,  to  adapt  Judgments  to  the  special  cir- 
cumstances of  cases  to  reach  and  to  complete  Justice  In  all  cases. 
Thomas  v.  Musical  Mut.  Protective  Union,  121  N.  Y.  45,  24  N.  B.  24. 


12  ORIGIN    AND    HISTORY.  (Ch.    1 

have  been  called  into  play,  and  the  distinct  equitable  jurisdic- 
tion of  a  court  of  chancery  would  never  have  been  created. 
Mr.  Green,  in  his  History  of  England,*  says :  "The  equita- 
ble jurisdiction  of  the  chancellor  sprang  from  the  defective 
nature  and  technical  and  unbending  rules  of  the  common 
law.  As  the  council  had  given  redress  in  cases  where  law 
became  injustice,  so  the  court  of  chancery  interfered,  with- 
out regard  to  the  rules  of  procedure  adopted  by  the  common- 
law  courts,  on  the  petition  of  a  party  for  whose  grievance  the 
common  law  provided  no  adequate  remedy.  An  analogous 
extension  of  his  powers  enabled  the  chancellor  to  afford  re- 
lief in  cases  of  fraud,  accident,  or  abuse  of  trust ;  and  this  side 
of  the  jurisdiction  was  largely  extended  at  a  later  time  by 
the  results  of  legislation  on  the  tenure  of  land  by  ecclesias- 
tical bodies." 

It  may  be  correctly  assumed  that  the  ultimate  source  of 
equitable  jurisdiction  was  in  the  king's  prerogative  to  ad- 
minister justice  independently  of  the  courts.  We  have  seen 
how  the  common  law  and  equitable  jurisdiction  of  the  chan- 
cellor arose  from  the  custom  of  the  king  and  his  council  to 
refer  matters  pertaining  to  the  administration  of  justice  to 
that  officer.  But  it  is  also  true  that  the  exercise  of  the  king's 
prerogative  would  not  have  been  often  required  had  the  com- 
mon-law courts  been  able  or  willing  to  provide  a  remedy  for 
every  wrong.  Many  injuries  existed  which  the  common-law 
courts  could  not  relieve.  The  suitor  was,  therefore,  in  such 
cases,  compelled  to  throw  himself  upon  the  grace  and  com- 
passion of  the  king  and  council ;  and  later,  when  the  equita- 
ble jurisdiction  of  the  court  of  chancery  became  firmly  es- 
tablished, he  was  required  to  seek  relief  in  that  court. 

The  equitable  jurisdiction  of  the  chancellor  grew  up  in  the 
same  manner,  and  under  the  same  circumstances,  as  the  equi- 
table jurisdiction  of  the  praetor  at  Rome.  Each  of  them 
arose  from  necessity  in  the  actual  administration  of  justice 
and  from  the  deficiencies  of  the  positive  law  (the  lex  scripta), 
or  from  the  inadequacy  of  the  remedies,  in  the  prescribed 
forms,  to  meet  the  full  exigency  of  each  particular  case.  It 
was  not  a  usurpation  for  the  purpose  of  acquiring  and  exer- 
cising power,  but  a  beneficial  interposition  to  correct  gross 

•  Green,  Hist  Eng.  book  8,  c.  4. 


§    2)          CAUSES    OF   EXISTENCE   OF    EQUITY    JURISDICTION.  13 

injustice,  and  to  redress  aggravated  and  intolerable  griev- 
ances.2 

The  inability  or  failure  of  the  common-law  judges  to  adopt 
and  apply  the  equitable  principles  contained  in  the  Roman 
law  added  materially  to  the  inflexibility  of  the  common  law, 
and  aided  in  the  growth  of  the  equitable  jurisdiction  of  the 
court  of  chancery.  The  Roman  law  was  a  growth  in  keep- 
ing with  the  needs  of  society,  and  contained  a  notion  of  equi- 
ty sufficient,  if  applied  to  the  administration  of  justice  by 
common-law  courts,  to  have  made  the  development  of  the 
equitable  jurisdiction  of  the  court  of  chancery  exceedingly 
difficult.  This  would  have  been  especially  so  had  the  com- 
mon-law judges  availed  themselves  of  the  example  set  by  the 
Roman  prastors,  and  invented  new  actions  and  defenses  to 
meet  the  exigencies  of  an  advancing  civilization.  But  in  the 
early  stages  of  the  development  of  English  equity,  Roman 
law  was  not  easily  applied  to  the  tenure  of  real  property,  and 
the  status  of  persons,  which  were  feudal  in  their  origin  and 
nature.  There  was  nothing  in  common  between  the  institu- 
tions of  feudalism  as  they  existed  under  the  Norman  kings 
and  the  doctrines  of  the  Roman  law.  As  long  as  these  insti- 
tutions continued,  none  of  the  doctrines  of  the  Roman  law 
could  be  effectively  or  advantageously  applied  to  them. 
Moreover,  the  possible  growth  of  the  Roman  law  early  re- 
ceived a  lasting  check.  In  the  reign  of  Edward  III.  the  ex- 
actions of  the  court  of  Rome  had  become  odious  to  the  king 
and  the  people.  The  king,  having  the  support  of  his  parlia- 
ment, refused  payment  of  the  tribute  which  had  been  de- 
manded by  the  pope,  and  measures  were  taken  to  prevent 
further  encroachments  of  the  papal  power."  A  general  dis- 
like on  the  part  of  the  laity  to  anything  connected  with  the 
Holy  See  began  to  spring  up.  The  very  name  of  Roman 
law  became  the  object  of  aversion.  In  the  reign  of  Richard 
II.  the  barons  formally  protested  that  they  would  not  allow 
the  kingdom  to  be  governed  by  the  Roman  law,  and  the  com- 
mon-law judges  prohibited  it  from  being  any  longer  cited  in 
their  courts.  The  immediate  effect  of  this  was  not  to  banish 
the  Roman  law,  but  to  transfer  it  to  another  tribunal,  which 

«  Story,  Eq.  Jur.  (13th  Ed.)  |  50. 
•  Speuce,  Eq.  Jur.  p.  346. 


14  ORIGIN    AND    HISTORY.  (Ch.    1 

was  not  governed  by  common-law  doctiines.  The  jurisdic- 
tion of  the  court  of  chancery  was  greatly  extended,  and  at 
once  embraced  the  subject-matters  of  litigation  which  re- 
quired the  application  of  the  principles  and  doctrines  of  the 
Roman  law. 

Inelasticity  of  System  of  Procedure. 

The  causes  stated  above  as  resulting  in  the  extension  of 
equity  and  the  prevention  of  the  expansion  of  the  common 
law  would  not  have  been  so  effectual  had  it  not  been  for  the 
cramped  and  inflexible  system  of  procedure  early  established 
in  the  courts  of  law.  According  to  the  common  law,  every 
species  of  civil  wrong  was  supposed  to  fall  within  some  par- 
ticular class,  and  for  each  class  an  appropriate  remedy  ex- 
isted by  the  use  of  a  fixed  number  of  "forms  of  action."  If 
the  facts  and  circumstances  of  a  particular  case  could  not  be 
embraced  in  any  of  these  forms,  no  remedy  could  be  had,  and 
the  only  mode  of  redress  was  by  an  application  made  directly 
to  the  king.  The  first  step  in  every  action  was  by  a  writ  or 
breve  issued  in  the  name  of  the  king.  Each  writ  was  found- 
ed on  some  principle  of  law  authorizing  the  right  of  action, 
and  stated  sufficient  facts  to  bring  the  case  within  such  prin- 
ciple.4 Thus,  if  a  suitor  had  suffered  an  injury,  it  was  not 
competent  for  him  to  bring  to  the  notice  of  the  court  the 
facts  of  the  case,  and  leave  it  to  the  court  to  say  whether, 
upon  such  facts,  the  case  was  one  deserving  of  redress ;  but 
he  had  first  to  determine  within  what  class  of  wrong  his  case 
fell,  and  then  apply  for  the  proper  writ.  If  the  facts  were 
such  as  to  bring  the  alleged  wrong  within  some  of  the  classes 
recognized  at  common  law,  there  was  the  risk  of  selecting  an 
improper  writ,  which  resulted  in  the  suitor  failing  in  his  ac- 
tion.8 

«  Spence,  Eq.  Jur.  p.  226. 

•  This,  indeed,  was  a  fertile  source  of  Injustice  In  common-law 
proceedings,  even  within  the  last  few  years;  in  fact  until  the  com- 
mon-law procedure  act  of  1852  (15  &  16  Viet.  c.  76,  §  3),  which  enact- 
ed "that  it  shall  not  be  necessary  to  mention  any  form  or  cause  of 
action  in  any  writ  of  summons."  Thus,  before  the  late  procedure 
act,  it  often  happened  that  a  man  sued  in  "debt"  when  he  ought 
to  have  sued  in  "assumpslt,"  or  "trespass"  when  he  ought  to  have 
selected  "case."  He  incurred,  perhaps,  great  expense;  and,  al- 
though proving  at  the  trial  facts  showing  him  to  be  entitled  to  a 


§   2)          CAUSES    OF   EXISTENCE    OP    EQUITY    JURISDICTION.  15 

All  these  writs  were  issued  in  early  times  by  the  clerks  in 
chancery.  Their  nature  was  fixed,  and  could  not  be  substan- 
tially changed.  If  a  precedent  could  not  be  found  among 
those  formerly  granted  on  facts  similar  to  those  of  the  case 
brought  by  the  suitor,  he  had  no  action.  It  often  happened, 
therefore,  that  there  was  an  absolute  denial  of  justice  to  the 
complainant.  This  evil  was  apparently  felt  at  an  early  time, 
for  in  13  Edw.  I.  a  statute  was  passed  attempting  a  remedy 
by  extending  the  discretion  of  the  clerks  in  chancery  in  fram- 
ing the  writ.  This  statute  *  provided  that  "whensoever  from 
henceforth  it  shall  fortune  in  the  chancery,  that  in  one  case  a 
remedy  is  found,  and  in  like  case  falling  under  like  law,  and 
requiring  like  remedy,  none  is  found,  the  clerks  of  the  chan- 
cery shall  agree  in  making  the  writ,  or  the  plaintiff  may  ad- 
journ it  until  the  next  parliament ;  and  the  cases  in  which 
the  clerks  cannot  agree  are  to  be  written  and  referred  by 
them  unto  the  next  parliament,  and  by  agreement  of  men 
learned  in  the  law  a  writ  is  to  be  made,  lest  it  should  hap- 
pen that  the  court  should  long  time  fail  to  minister  justice 
unto  complainant."  This  statute  did  not  furnish  adequate 
relief.  The  clear  intent  was  to  permit  the  common-law 
courts  to  administer  justice  in  cases  not  within  the  prece- 
dents already  established.  But  the  common-law  judges  re- 
fused to  consider  themselves  bound  by  the  decisions  of  the 
clerks  in  chancery  in  issuing  writs  under  such  statute,  and 
exercised  the  right,  which  they  had  always  assumed,  of  deter- 
mining the  validity  of  all  writs.  Knowing  the  antipathy  to 
Roman  law,  it  can  be  readily  seen  that  new  writs  issued  to 
meet  newly-occurring  emergencies  involving,  as  they  un- 
doubtedly did,  the  principles  of  Roman  law,  must  have  arous- 
ed the  jealousy  of  the  common-law  judges,  and  made  them 
reluctant  to  avail  themselves  of  the  privileges  conferred  by 
the  statute.  When  not  disregarding  entirely  the  new  writs 
issued  by  the  chancery  clerks,  the  judges  construed  the  stat- 
ute so  strictly  that  its  ultimate  object  of  enlarging  the  scope 
of  the  common  law  and  retarding  the  growth  of  the  equita- 
ble jurisdiction  of  the  court  of  chancery  was  completely  frus- 

common-law  remedy,  yet  failed  because  he  had  selected  the  wrong 
form  of  action.    Haynes,  Eq.  p.  9. 
•  13  Edw.  I.  st  L  c.  24. 


16  ORIGIN    AND    HISTORY.  (Ch.   1 

trated.  The  courts  imposed  a  highly  restrictive  meaning 
upon  the  words,  "falling  under  like  law,  and  requiring  like 
remedies,"  and  insisted  that  all  new  writs  should  be  like  one 
of  those  in  use  in  the  common-law  forms  of  action ;  so  that, 
unless  the  relief  sought  fell  within  prescribed  forms,  there 
was  no  remedy,  and  litigants  requiring  special  equitable  re- 
lief were  still  compelled  to  seek  another  tribunal.  The  stat- 
,ute  only  provided  for  new  writs  on  behalf  of  plaintiffs.  But 
with  advancing  civilization  new  defenses  also  arose,  for  which 
no  provision  had  been  made,  and  which,  therefore,  fell  be- 
yond the  province  of  the  common  law.  In  such  cases  the 
jurisdiction  of  the  chancellor  was  appealed  to,  which  was 
generally  exercised  by  enjoining  the  prosecution  of  the  legal 
action  in  which  the  equitable  defense  interposed  had  been 
rejected. 

While  this  statute  was  ineffectual  to  prevent  the  growth  of 
the  equity  jurisdiction,  it  resulted  in  the  creation  of  at  least 
three  new  forms  of  legal  actions, — "trespass  on  the  case," 
and  its  offshoots,  "trover"  and  "assumpsit," — which  in  later 
times  were  potent  aids  in  the  reformation  and  reconstruc- 
tion of  the  common  law.  These  actions  have  been  free  from 
formal  restraints,  flexible  in  their  adaptability,  and  capable 
of  being  administered  in  conformity  with  equitable  doctrines. 
Through  their  means,  many  of  the  rules  which  were  origi- 
nally established  by  the  chancellor  have  been  incorporated 
into  the  law,  and  are  now  mere  legal  commonplaces.* 

Inadequacy  of  Common-Law  Remedies. 

Another,  and  perhaps  the  most  direct  and  proximate,  cause 
of  the  growth  and  development  of  the  system  of  equity  is  the 
insufficiency  or  inadequacy  of  common-law  remedies.  It 
has  been  said  that  the  growth  of  equity  has  its  root  in  the 
system  of  remedies  adopted.  While  it  is  the  office  of  chan- 
cery to  mitigate  the  rigor  of  the  common  law,  to  supply  its 
deficiencies,  to  relieve  against  its  technical  rules,  and  to  de- 
cide controversies  according  to  equity  and  good  conscience, 
it  is  because  of  its  system  of  remedies  that  it  is  enabled  to  do 
this.1  To  understand  this,  it  is  only  necessary  to  consider 

•  1  Pom.  Eq.  Jur.  5  29. 

f  1  Keener,  Cas.  Eq.  Jur.  p.  10  (Langd.  Eq.  PL). 


§    2)          CAUSES    OF    EXISTENCE    OF    EQUITY    JURISDICTION.  17 

the  distinction  between  the  judgments  of  courts  of  law  and 
the  decrees  of  courts  of  chancery.  In  an  action  at  law  a 
general  and  unqualified  judgment  only  can  be  given  for  the 
plaintiff  or  for  the  defendant,  without  any  adaptation  of  it  to 
particular  circumstances.  But  courts  of  equity  can  adapt 
their  decrees  to-  all  the  varieties  of  circumstances  which  may 
arise,  and  adjust  them  to  all  the  peculiar  rights  of  all  the  par- 
ties in  interest.  They  may  administer  remedies  for  rights 
which  are  not  recognized  by  courts  of  common  law.  Thus, 
what  are  technically  called  "trusts"  are  wholly  without  any 
cognizance  at  the  common  law,  and  the  abuses  of  such  trusts 
are  beyond  the  reach  of  legal  process.  But  they  are  cog- 
nizable in  courts  of  equity,  and  an  ample  remedy  is  there 
given  in  favor  of  the  cestuis  que  trustent  for  all  wrongs  and 
injuries,  whether  arising  from  negligence  or  positive  miscon- 
duct. There  are  also  many  cases  of  losses  and  injuries  by 
mistake,  accident,  and  fraud,  of  penalties  and  forfeitures,  of 
impending  irreparable  injuries  or  meditated  mischiefs,  and  of 
oppressive  proceedings,  undue  advantages  and  impositions, 
betrayals  of  confidences,  and  unconscionable  bargains,  in  all 
of  which  courts  of  equity  will  interfere,  and  grant  redress, 
but  of  which  the  common  law  takes  no  notice,  or  silently  dis- 
regards. Courts  of  equity  may  compel  a  party  to  specific- 
ally perform  a  broken  contract ;  courts  of  common  law  can 
only  award  damages  for  the  breach.  Courts  of  equity  can 
prevent  wrongs  by  injunction,  but  courts  of  common  law  can 
only  grant  redress  when  the  wrong  is  done.8  This  power  of 

«  Story,  Eq.  Jur.  §§  28-30.  It  was  probably  in  the  reign  of  Rich- 
*rd  II.  that  the  chancellor  began  to  establish  systematically  hia 
peculiar  restraining  jurisdiction.  This  originated  in  the  practice  of 
feoffments  to  uses,  by  which  the  feoffor,  who  had  legal  seisin  of 
the  landj  stood  bound  by  private  engagement  to  suffer  another, 
called  the  cestui  que  use,  to  enjoy  its  use  and  possession.  Such 
fiduciary  estates  were  well  known  to  the  Roman  Jurists,  but  incon- 
sistent with  the  feudal  genius  of  the  English  law.  The  courts  of. 
Justice  gave  no  redress,  if  the  feoffor  to  uses  violated  his  trust  by 
detaining  the  land.  To  remedy  this,  an  ecclesiastical  chancellor 
devised  the  writ  of  subpoena,  compelling  him  to  answer  on  oath  as 
to  his  trust.  It  was  evidently  necessary  also  to  restrain  him  from 
proceeding,  as  he  might  do,  to  obtain  possession;  and  this  gave 
rise  to  injunctions,— that  is,  prohibitions  to  sue  at  law,— the  viola- 
tion of  which  was  punishable  by  imprisonment  as  a  contempt  of 
EATON.EQ— 2 


18  OUIGIN    AND    HISTORY.  (Ch.    1 

diversifying  the  remedies  so  that  they  may  be  applied  to  all 
wrongs  capable  of  redress,  and  protect  the  legal  rights  of 
suitors,  has  always  given  courts  of  equity  an  advantage  over 
courts  of  common  law,  and  tended  to  enlarge  the  exercise  of 
the  jurisdiction  of  the  former. 


SEPARATE  EQUITABLE  TRIBUNALS  ABOLISHED. 

3.  The  separate  tribunals  of  law  and  equity  were 
abolished  in  England  by  the  supreme  court 
judicature  act  of  1873. 

By  the  supreme  court  judicature  act  of  1873,*  the  consti- 
tution of  the  courts  of  England  was  radically  changed.  By 
this  act  it  was  enacted  that  in  every  civil  cause  or  matter 
law  and  equity  shall  be  concurrently  administered  in  one  su- 
preme court  of  judicature  created  by  uniting  all  the  higher 
tribunals  both  of  equity  and  common  law,  and  that  in  all  mat- 
ters not  particularly  mentioned  in  the  act,  where  there  is  any 
conflict  or  variance  between  the  rules  of  equity  and  the  rules 
of  common  law,  the  rules  of  equity  shall  prevail.  As  a  re- 
sult of  this  legislation,  the  legal  and  equitable  jurisdictions 
are  administered  by  the  same  court,  and  legal  and  equitable 
rights  are  enforced,  and  legal  and  equitable  remedies  are 
granted  in  the  same  action.2  The  line  of  demarkation  be- 

court  Other  instances  of  breach  of  trust  occurred  In  personal  con- 
tracts, and  others  wherein,  without  any  trust,  there  was  a  wrong 
committed  beyond  the  competence  of  the  courts  of  law  to  redress; 
to  all  which  the  process  of  subposna  was  made  applicable.  This 
extension  of  a  novel  jurisdiction  was  partly  owing  to  a  fundamental 
principle  of  our  common  law  that  a  defendant  cannot  be  exam- 
ined, so  that,  If  no  witness  or  written  instrument  could  be  pro- 
duced to  prove  a  demand,  the  plaintiff  was  wholly  debarred  of  jus- 
tice; but  in  a  still  greater  degree  to  a  strange  narrowness  and 
scrupulosity  of  the  judges,  who,  fearful  of  quitting  the  letter  of 
their  precedents,  even  with  the  clearest  analogies  to  guide  them, 
repelled  so  many  just  suits,  and  set  up  rules  of  so  much  hardship, 
tlint  men  were  thankful  to  embrace  the  relief  held  out  by  a  tribunal 
acting  In  a  more  rational  spirit  1  Hallam,  Const  Hist  p.  4C9. 

53.     i  30  &  37  Viet.  c.  66. 

»  By  the  supreme  court  of  judicature  act  the  court  of  chancery. 


§   4)  EQUITY  JURISDICTION    IN   THE   UNITED   STATES.  19 

tween  legal  actions  and  suits  in  equity  was  thus  obliterated 
after  the  development  and  growth  of  both  systems,  side  by 
side,  through  many  centuries.  But  the  principles  of  equity 
jurisprudence  are  still  in  force.  Equitable  doctrines,  estates, 
and  remedies  still  exist  as  part  and  parcel  of  a  system  as  dis- 
tinct from  the  legal  system  as  when  separate  tribunals  were 
in  active  operation  for  the  administration  of  justice.  Nor 
have  the  importance  and  value  of  equitable  principles  been 
lessened  by  the  consolidation  of  such  tribunals.  No  modifi- 
cations can  be  introduced  by  statute  into  the  judicial  system 
of  any  civilized  state  whose  institutions  are  directly  or  indi- 
rectly of  English  origin  which  will  in  any  way  abrogate  the 
necessity  for  the  use  and  application  of  principles  which 
have  always  been  administered  by  courts  of  equity. 


EQUITY  JURISDICTION  IN  THE  UNITED  STATES. 

4.  The  equity  jurisdiction  exercised  in  the  United 
States  courts  and  in  the  courts  of  the  several 
states  is  founded  upon,  co-extensive  with, 
and  in  most  respects  conformable  to,  that  of 
England. 

When  the  American  colonies  became  states,  statutes  were 
passed  in  many  of  them  declaring  that  the  English  law  in 
force  on  a  certain  day  should  be  adopted  by  the  courts  of 
such  states  as  the  common  law  thereof,  and  should  remain 
such  until  modified  by  legislation.  In  many  states  there 
was  also  contained  in  the  same  or  similar  statutes  a  declara- 
tion recognizing  and  adopting  the  equity  jurisdiction  of  the 
English  courts  of  chancery.  In  other  states — as  New  York, 
New  Jersey,  Maryland,  Delaware,  and  South  Carolina — the 
constitutions  provided  for  the  establishment  of  courts  of 

the  court  of  queen's  bench,  the  court  of  common  pleas,  the  court  of 
exchequer,  the  high  court  of  admiralty,  the  court  of  probate,  the 
court  for  divorce  and  matrimonial  causes,  and  the  London  court  of 
bankruptcy  were  united  and  consolidated  in  one  supreme  court  of 
judicature,  to  consist  of  two  divisions  under  the  name  of  "Her  Maj- 
esty's High  Court  of  Justice"  and  "Her  Majesty's  Court  of  Appeal." 


20  ORIGIN    AND   HISTORY.  (Ch.   1 

chancery.  In  still  others  the  courts,  without  the  interven- 
tion of  constitutional  or  statutory  provision,  at  once  adopted 
the  judicial  system  of  the  mother  country. 

The  federal  constitution  provides  that  the  judicial  power 
of  the  United  States  "shall  extend  to  all  cases  in  law  and 
equity,  arising  under  the  constitution,  the  laws  of  the  United 
States,  and  treaties  made  or  which  shall  be  made  under  their 
authority."  *  The  uniform  interpretation  of  this  clause  has 
been  that  by  cases  in  equity  are  meant  cases  which,  in 
the  jurisprudence  of  England,  are  so  called  in  contradistinc- 
tion to  cases  at  common  law.2  The  rules  of  the  supreme 
court  of  the  United  States  provide,  and  it  has  more  than 
once  been  held,  that,  when  not  otherwise  directed,  the 
practice  in  the  high  court  of  chancery  in  England  shall  be 
followed.*  And  in  states  where  courts  of  equity  do  not  ex- 
ist, or  where  equity  is  administered  by  the  same  courts  and 
in  the  same  form  as  the  common  law,  the  procedure  of  the 
federal  courts  is  regulated  by  the  provisions  of  the  United 
States  constitution  and  statutes,  and  is  not  affected  by  the 
practice  in  the  state  courts.  Federal  courts  are  bound  to 
administer  equitable  remedies  uniformly  throughout  the 
United  States  in  all  cases  to  which  they  are  applicable,  where 
such  remedies  cannot  be  obtained  in  a  common-law  action, 
regardless  of  the  statutes  in  force  in  the  states  where  such 
courts  are  sitting.* 


I  4.     i  Const  U.  S.  art.  3,  §  2. 

*  Robinson  v.  Campbell,  3  Wheat.  223,  4  L.  Ed.  372;    Parsons  v. 
Bedford,  3  Pet.  433,  447,  7  L.  Ed.  732;   Neves  v.  Scott,  13  How.  270, 
14  L.  Ed.  140;   Boyle  v.  Zacharie,  6  Pet.  658,  8  L.  Ed.  532. 

»  Mississippi  Mills  v.  Cohn,  150  U.  S.  202,  205,  14  Sup.  Ct  75,  76, 
87  L.  Ed.  1052;  Payne  v.  Hook,  7  Wall.  425,  430,  19  L.  Ed.  260; 
Klrby  v.  Railroad  Co.,  120  U.  S.  130,  138,  7  Sup.  Ct  430,  30  L.  Ed. 
569;  Bein  v.  Heath,  12  How.  168,  13  L.  Ed.  939;  Pennsylvania  v. 
Bridge  Co.,  13  How.  518,  14  L.  Ed.  249;  Wells  v.  Pierce,  27  N.  H. 
503. 

*  Equitable  titles,  though  allowed  to  be  set  up  in  state  courts  in 
common-law  suits,  cannot  be  recognized  in  such  suits  in  the  federal 
courts.     They  must  be  made  the  subject  of  suits  in  equity.     Rid- 
ings  v.   Johnson,   128  U.    S.    217,   9   Sup.    Ct.   72,   32   L.    Ed.    401. 
See,  also,  Bodley  v.  Taylor,  5  Cranch,  191,  221,  222,  3  L.  Ed.  75;   Liv- 
ingston v.  Story,  9  Pet  632,  9  L.  Ed.  255;    Watkins  v.  Holman's 
Lessee,  16  Pet  25,  26,  58,  59,  10  L.  Ed.  873;   Stinson  v.  Dousman,  20 


§   4)  EQUITY    JURISDICTION    IN    THE    UNITED    STATES.  21 

Administration  of  Equity  in  the  Several  States. 

Mr.  Pomeroy  says:  "The  American  state  courts  do  not 
derive  their  equitable  powers,  as  they  do  their  common-law 
functions,  as  a  part  of  the  entire  common-law  system  of  ju- 
risprudence which  we  have  inherited  from  England,  and 
which  is  assumed  to  exist  even  independently  of  legislation. 
Their  equitable  jurisdiction  is  wholly  a  creature  of  statute, 
and  is  measured  in  each  state  by  the  extent  and  limitations 
of  the  statutory  -authority."  B  It  may  thus  be  seen  that  the 
details  of  the  equity  jurisdiction  as  it  exists  in  any  particular 
state  can  only  be  ascertained  by  a  close  study  of  the  deci- 
sions and  statutes  of  that  state.  In  many  of  the  states  equi- 
ty is  still  administered  by  separate  tribunals.  Such  states 
are  New  Jersey,  Alabama,  Delaware,  Mississippi,  and  Ten- 
nessee. In  Kentucky,  the  circuit  courts  have  original  juris- 
diction of  all  matters,  both  in  law  and  equity ;  but  a  special 
court  is  established  in  certain  districts  for  the  hearing  and 
decision  of  all  equitable  actions  which  would  otherwise  be 
heard  by  the  circuit  courts  of  those  districts.  In  many  other 
states — such  as  Maine,  New  Hampshire,  Vermont,  Massa- 
chusetts, Rhode  Island,  Connecticut,  Pennsylvania,  Mary- 
land, Virginia,  West  Virginia,  Georgia,  Florida,  Texas,  Ar- 
kansas, Michigan,  Iowa,  North  Dakota,  South  Dakota,  Colo- 
rado, Washington,  and  Oregon — separate  courts  of  equity 
have  either  never  existed  or  have  been  abolished,  and  chan- 
cery powers  are  exercised  by  common-law  courts,  but  the 
forms  of  action  and  procedure  are  retained.  The  state  of  New 
York,  by  its  constitution  of  1846,  abolished  courts  of  chan- 
cery, and  conferred  upon  the  supreme  court  general  jurisdic- 
tion in  law  and  equity,  with  all  the  powers  possessed  by  the 
former  court  of  chancery.6  By  the  Code  of  Procedure  enact- 
ed soon  after  the  adoption  of  this  constitution,  the  distinction 
between  actions  at  law  and  suits  in  equity,  and  the  forms  of 
all  such  actions  and  suits,  were  abolished,  and  one  form  of 

How.  461,  464,  15  L.  Ed.  966;  Greer  v.  Mezes,  24  How.  268,  277,  16 
L.  Ed.  661;  Noonan  v.  Lee,  2  Blackf.  499,  509,  17  L.  Ed.  278;  Walker 
v.  Dreville,  12  Wall.  440,  20  L.  Ed.  429;  Basey  v.  Gallagher,  2O 
Wall.  670,  679,  22  L.  Ed.  452. 

B  1  Pom.  Eq.  Jur.  §  282. 

"Const.  1846,  art.  6,  §  6,  and  Id.  art.  14,  §§  5,  6.  See  present 
Const.  1894,  art.  6,  §  1. 


22  ORIGIN    AND    HISTORY.  (Cfa.   1 

action  for  the  enforcement  and  protection  of  private  rights 
and  the  redress  of  private  wrongs  was  adopted,  which  is  de- 
nominated a  "civil  action."  T  The  example  thus  set  by  New 
York  has  been  followed  by  North  and  South  Carolina,  Ohio, 
Indiana,  Wisconsin,  Minnesota,  Missouri,  Kansas,  Nebras- 
ka, Wyoming,  Idaho,  Montana,  Utah,  California,  and  Ne- 
vada. 

The  classification  of  states  above  made  is  in  accordance 
with  the  manner  and  method  of  administering  equity.  In 
many  of  the  states  above  classified  the  chancery  powers  dele- 
gated to  the  courts  are  substantially  the  same  as  those  pos- 
sessed by  the  English  court  of  chancery;  but  in  others  the 
delegation  of  power  is  special  in  its  nature,  and  limited  in  its 
extent.  In  the  states  of  Maine,  New  Hampshire,  Massachu- 
setts, and  Pennsylvania  the  chancery  powers  possessed  by 
the  courts  were  originally  specified  by  statute ;  and  no  pow- 
ers were  thus  possessed  which  were  not  so  specified.  New 
Hampshire  and  Massachusetts  by  subsequent  statutes  so  ex- 
tended the  equity  jurisdiction  of  their  courts  that  it  is  now 
practically  unlimited.8  But  in  Maine  and  Pennsylvania  the 
statute  still  limits  the  equitable  jurisdiction  of  the  courts. 
The  statutes  of  the  other  states  differ  in  their  methods  of 
conferring  the  equitable  jurisdiction,  but  it  may  be  stated 

T  Code  Proc.  (passed  April  12,  1848)  §  69.  See  present  Code  Civ. 
Proc.  §  3339,  which  is  as  follows:  "There  is  only  one  form  of  civil 
action.  The  distinction  between  actions  at  law  and  suits  in  equity, 
and  forms  of  those  actions  and  suits,  have  been  abolished." 

•  By  Gen.  St.  N.  H.  18(57,  p.  388,  c.  190,  §  1,  the  supreme  court 
has  the  powers  of  a  court  of  equity  in  all  cases  cognizable  in  such 
courts,  and  may  hear  and  determine  according  to  the  course  of 
equity  in  cases  of  charitable  uses,  trusts,  fraud,  accident,  or  mis- 
take; of  the  affairs  of  co-partners,  Joint  tenants  or  owners,  or  ten- 
ants In  common;  of  the  redemption  and  foreclosure  of  mort- 
gages, etc.,  "and  In  all  other  cases  where  there  is  not  a  plain,  ade- 
quate, and  complete  remedy  at  law,  and  such  remedy  may  be  had 
by  proceedings  according  to  the  course  of  equity."  In  Massachu- 
setts It  was  provided  by  St.  1877.  c.  178,  p.  558,  §  1,  that:  "The 
supreme  Judicial  court  shall  have  Jurisdiction  in  equity  of  all  cases 
and  matters  of  equity  cognizable  under  the  general  principles  of 
equity  Jurisprudence,  and  in  respect  of  all  such  cases  and  matters 
shall  be  a  court  of  general  equity  jurisdiction."  This  Jurisdiction 
was  conferred  in  1883  upon  the  superior  court,  which  now  has  con- 
current equity  Jurisdiction  with  the  supreme  Judicial  court 


§    4)  EQUITY   JURISDICTION    IN    THE    UNITED    STATES.  23 

generally  that  the  extraordinary  jurisdiction  of  the  English 
courts  of  chancery  has  been  transferred  to  and  adopted  by 
the  courts  of  such  states  practically  without  limitation  as  to 
scope  and  nature.9 

It  is  evident  that  the  greatest  change  in  the  equity  juris- 
diction has  been  made  in  those  states  in  which  the  distinc- 
tion between  legal  and  equitable  forms  of  action  has  been 
abolished,  and  one  form  of  action  adopted  to  take  the  place 
of  both.  But  even  in  those  states  the  equitable  principles 
according  to  which  the  rights  of  parties  are  to  be  determined 
remain  unchanged.  The  change  in  procedure  and  in  judi- 
cial systems  was  not  intended  to  secure  an  interference  with 
or  modification  of  the  existing  rules  and  principles  of  equity 
unless  questions  of  equity  pleading  and  procedure  are  in- 
volved, or  unless  such  rules  and  principles  affect  the  sep- 
arate and  distinct  character  of  the  equity  jurisdiction.10  The 

9  Mr.  Pomeroy,  in  his  Equity  Jurisprudence  (volume  1  [2d  Ed.] 
283-288),  attempts  a  classification  of  the  states  in  respect  to  the 
amount  of  equity  jurisdiction  possessed  by  the  state  courts.     He 
divides  the  states  into  four  classes:     (1)  Where  statutes  or  consti- 
tutions confer  an  equity  jurisdiction  identical  or  co-extensive  with 
that  possessed  by  the  English  court  of  chancery;    (2)  where  the 
constitutions,  not  in  express  terms,  but  by  implication,  create  and 
confer  an  equity  jurisdiction  substantially  the  same  as  that  pos- 
sessed by  the  English  court  of  chancery,  except  so  far  as  modified 
or  limited  by  statute;    (3)  where  the  constitutions  and  statutes  do 
not  confer  a  general  equity  jurisdiction  by  any  single  comprehensive 
provision,  or  single  grant  of  power,  but  enumerate  and  specify  the 
heads  or  divisions  of  equity  jurisprudence  over  which  the  jurisdic- 
tion of  the  courts. shall  extend,  with  various  restrictions  and  lim- 
itations;   (4)  where  the  constitutions  and  statutes,  in  their  grants 
of  jurisdiction  to  the  courts,  make  no  distinction  between,  nor  even 
any  mention  of,  either  "law"  or  "equity."     These  are  the  states 
which  have  abandoned  the  forms  of  procedure  inherited  from  Eng- 
land, and  adopted  the  reformed  American  procedure.     Their  con- 
stitutions and  statutes  confer  upon  the  courts  complete  power  and 
jurisdiction  to  hear  and  determine  all  civil  cases,  or  to  grant  all 
civil  remedies;    and  they  thus  implicitly  include  a  full  jurisdiction 
in  cases  and  over  remedies  of  an  equitable  character,  as  well  as 
those  of  a  legal  nature. 

10  The  following  note  in  1  Abb.  N.  Y.  Dig.  tit.  "Actions,"  p.  31,  is 
Instructive  as  showing  the  effect  of  the  abolition  of  the  distinctions 
between  legal  and  equitable  forms  of  actions,  as  declared  by  the 
court  of  appeals  in  New  York:    "The  following  principles  may  now 


24  ORIGIN    AND   HISTORY.  (Ch.   1 

only  result  sought  or  attained  by  abolishing  the  distinction 
between  law  and  equity  procedure  was  to  unify  the  instru- 
mentalities, modes,  and  external  forms  by  which  justice  is 


be  deemed  settled  by  the  decisions  of  the  court  of  appeals,  and  rec- 
ognized by  good  authority  in  practice:  First.  It  is  only  the  distinc- 
tion between  different  forms  of  actions  or  suits  that  Is  abolished. 
The  difference  between  legal  relief  (by  which  is  understood,  in 
general,  compensation  in  damages),  and  equitable  relief  (by  which 
is  understood,  in  general,  specific  relief,  such  as  courts  of  law 
could  not  grant),  is  inherent,  and  the  essential  facts  which  constitute 
the  right  to  relief  of  either  kind  are  unchanged;  suitors  will  ask 
for  one  or  the  other  or  both,  according  to  the  nature  of  the  facts. 
Cole  v.  Reynolds,  18  N.  Y.  74;  Goulet  v.  Asseler,  22  N.  Y.  225. 
Second.  Where  the  same  facts  entitle  plaintiff  to  both  kinds  of 
relief,  both  may  be  administered  in  one  action.  All  the  relief  to 
which  a  party  is  entitled,  arising  from  the  same  transaction,  may 
be  obtained  in  one  suit  Corning  v.  Nail  Factory,  40  N.  Y.  191; 
Lattin  v.  McCarty,  41  N.  Y.  107.  Upon  the  same  principle,  when,  as 
is  often  the  case,  the  facts  would  sustain  plaintiffs  claim  to  legal 
relief,  and  yet  would  entitle  defendant  to  equitable  relief  inter- 
fering with  and  nullifying  the  former,  the  whole  matter  can  be 
adjusted  in  one  action.  In  other  words,  purely  equitable  defenses 
are  available  against  strictly  legal  causes  of  action.  Crary  v.  Good- 
man, 12  N.  Y.  266,  64  Am.  Dec.  506;  Phillips  v.  Gorham,  17  N.  Y. 
270.  And,  on  the  other  hand,  in  an  action  for  legal  relief,  a  mat- 
ter which  would  have  been  a  bar  in  an  action  at  law  is  not  such  if 
It  would  not  have  been  in  equity.  Cole  v.  Reynolds,  18  N.  Y.  74. 
Third.  It  is  no  objection  to  Joining  distinct  causes  of  action  or 
defenses  in  one  action  that  they  require  different  kinds  of  relief. 
Phillips  v.  Gorham,  17  N.  Y.  275;  Lattin  v.  McCarty,  41  N.  Y.  107." 
As  to  the  effect  of  abolishing  such  distinction  in  other  states,  see 
De  Witt  v.  Hays,  2  Cal.  463,  56  Am.  Dec.  352;  Woodford  v.  Leav- 
en worth,  14  Ind.  311;  Matlock  v.  Todd,  25  Ind.  128;  Claussen  v.  La 
Frenz,  4  G.  Greene  (Iowa)  224;  Russell  v.  Minnesota  Outfit,  1  Minn. 
162  (Gil.  136);  Maguire  v.  Vice,  20  Mo.  429;  Richardson  v.  Means, 
22  Mo.  495;  Hunter  v.  Hunter,  50  Mo.  445;  Matthews  v.  McPherson, 
65  N.  C.  189;  Burrage  v.  Mining  Co.,  12  Or.  169,  6  Pac.  766;  Sykes 
v.  Bank,  2  S.  D.  242,  49  N.  W.  1058.  The  functions  of  Judges  in 
dealing  with  equitable  principles  in  equitable  cases  are  as  well  set- 
tled a  part  of  the  judicial  power,  and  as  necessary  to  its  adminis- 
tration, as  the  functions  of  juries  in  common-law  cases,  and  it  is 
not  in  the  power  of  the  legislature  to  take  them  away.  It  was, 
therefore,  held  that  the  constitution  of  Michigan  (Art  6,  S  5),  which 
authorizes  the  legislature  to  abolish,  as  far  as  practicable,  dis- 
tinctions between  law  and  equity  proceedings,  only  authorizes  the 
removal  of  nominal  distinctions.  Brown  v.  Circuit  Judge,  75  Mich. 
274,  42  N.  W.  827,  5  L.  B.  A.  226. 


§   4)        EQUITY    OF   JURISDICTION    IN   THE    UNITED   STATES.  25 

administered,  rights  are  protected,  and  remedies  are  con- 
ferred, without  affecting  the  settled  principles,  doctrines,  and 
rules  of  equity  jurisprudence  and  equity  jurisdiction.11 

11  Mr.  Pomeroy  in  his  Equity  Jurisprudence  (volume  1,  2d  Ed. 
§  354)  says:  "To  sum  up  this  result  in  one  brief  statement,  all 
equitable  estates,  Interests,  and  primary  rights,  and  all  the  prin- 
ciples, doctrines,  and  rules  of  the  equity  Jurisprudence  by  which 
they  are  defined,  determined,  and  regulated,  remain  absolutely  un- 
touched, in  their  full  force  and  extent,  as  much  as  though  a  sepa- 
rate court  of  chancery  were  still  preserved.  In  like  manner  all  equi- 
table remedies  and  equitable  rights— that  is,  the  equitable  causes 
of  action,  and  the  rights  to  obtain  the  reliefs  appropriate  therefor, 
and  the  doctrines  and  rules  of  equity  jurisdiction  which  govern  and 
regulate;  not  the  mere  mode  of  obtaining  them,  but  the  fact  of 
obtaining  such  remedies — also  remain  wholly  unchanged,  and  still 
control  the  action  of  courts  in  the  administration  of  Justice." 


26  GENERAL    PRINCIPLES    GOVERNING.  (Ch.  2 


CHAPTER  II. 

GENERAL  PRINCIPLES  GOVERNING  THE  EXERCISE  OF 
EQUITY  JURISDICTION. 

6.  Equity  and  the  Common  Law. 

6.  Equity  Jurisdiction  Defined. 

7.  Exercise  of  Equity  Jurisdiction. 

8.  Adequate  Remedy  at  Law. 

9.  Multiplicity  of  Suits. 

10.  Retention  of  Jurisdiction  to  Award  Complete  Relief. 

11.  Effect  of  Acquisition  by  Courts  of  Law  of  a  Jurisdiction 

Similar  to  that  of  Equity. 

12.  Auxiliary  Jurisdiction  of  Equity. 


EQUITY  AND  THE  COMMON  LAW. 

6.  The  original  relationship  of  equity  and  the  com- 
mon law  has  been  materially  modified  by 

(a)  The  gradual  adoption  and  application  by  law 

courts  of  equitable  doctrines, 

(b)  Legislative  enactments. 

Many  important  doctrines  formerly  recognized  by  courts 
of  equity  alone  have,  in  modern  times,  been  adopted  and  ap- 
plied by  courts  of  law.  The  rigid  adherence  of  the  common 
law  to  precedent,  and  a  strict  application  of  the  forms  and 
notions  of  the  ancient  law,  have  been  gradually  lessened,  so 
that  now  many  of  the  rules  in  force  in  courts  of  law  are  as 
equitable  and  righteous  in  their  nature  as  those  applied  in 
courts  of  equity.1  Statutes  have  been  enacted  which  have 
directed  the  application  of  equitable  principles  in  all  courts, 
producing  in  many  instances  an  amelioration  of  the  hardships 
of  the  common  law,  and  imposing  upon  courts  of  law,  in  such 
instances,  a  jurisdiction  which  had  hitherto  been  exclusively 
cognizable  in  courts  of  equity.  The  statutes  here  referred  to 
are  not  those  modifying  the  forms  of  procedure,  and  pro- 
viding for  the  administration  of  legal  and  equitable  rules  by 

S  5.     *  Pom.  Eq.  Jur.  5  69. 


§   i)  EQUITY    AND    THE    COMMON    LAW.  27 

the  same  courts,  but  those  having  for  their  object  the  gen- 
eral use  of  equitable  principles  and  doctrines  in  all  courts. 
It  is  not  necessary  at  this  time  to  specify  in  detail  all  these 
changes.  Among  the  most  important,  perhaps,  are  those  af- 
fecting the  rights  and  property  of  married  women.  Stat- 
utes have  been  passed  in  nearly  all  the  states  abrogating  the 
common-law  rules  giving  the  husband  an  ownership  or  in- 
terest in  his  wife's  property ;  and  by  such  statutes  she  is  gen- 
erally given  the  same  power  to  manage  her  property  and 
make  contracts  in  respect  thereto  as  if  she  were  unmarried. 
These  statutes  vary  in  their  extent  in  the  several  states ;  but 
in  all  of  them  the  effect  upon  the  equitable  jurisdiction  has 
been  very  great.  Equity  has  always  intervened  for  the  pro- 
tection of  married  women  as  against  the  frequent  hardships 
resulting  from  the  application  of  legal  rules.  But  the  neces- 
sity for  this  intervention  is  taken  away  when  statutes  confer 
upon  married  women  the  right  of  full  legal  ownership. 

Statutes  in  the  American  states  govern  the  administration 
of  estates  of  decedents,  and  the  care  and  custody  of  the  per- 
sons and  property  of  infants.  For  this  purpose  surrogates' 
or  probate  courts  have  been  created,  and  the  equitable  rules 
relating  to  the  settlement  of  such  estates  and  the  manage- 
ment of  the  property  of  infants  have  been  enacted  in  statu- 
tory form  to  be  enforced  in  such  courts,  to  the  practical  ex- 
clusion of  the  equitable  jurisdiction. 

Among  other  instances  of  the  modification  of  the  relation 
existing  between  the  two  jurisdictions  by  statutory  enact- 
ment is  the  abrogation  of  the  distinction  between  sealed  and 
unsealed  instruments.  At  law  a  sealed  instrument  could  on- 
ly be  discharged  by  another  instrument  of  as  high  a  char- 
acter, or  by  a  delivery  and  cancellation  of  the  sealed  instru- 
ment. -Equity,  regarding  the  real  relations  of  the  parties, 
looked  beyond  the  seal,  and  gave  force  to  the  real  fact  of 
the  payment  or  satisfaction  of  the  sealed  instrument.  Stat- 
utes in  many  states  have  declared  that  the  equitable  rule  shall 
be  universally  applied,  and  have  abolished  the  distinction  be- 
tween sealed  and  unsealed  instruments. 

Many  other  instances  of  the  legislative  enunciation  of  equi- 
table principles  might  be  mentioned.  The  present  purpose 
is  merely  to  emphasize  the  fact  that  the  relations  existing 


28  GENERAL    PRIXCIPLES    GOVERNING.  (Ch.  2 

between  the  two  systems  of  equity  and  the  law  are  not  now 
the  same  as  when  equity  was  in  its  infancy,  and  the  common- 
law  undeveloped.  These  changes  have  made  useless  the  dis- 
cussion of  many  equitable  doctrines  which  have  become  ob- 
solete, since  all  occasion  for  their  application  has  been  re- 
moved. 


EQUITY  JURISDICTION  DEFINED. 

6.  Equity  jurisdiction,  as  distinguished  from  the 
common-law  jurisdiction,  is  the  power  to 
hear  certain  kinds  and  classes  of  civil  causes 
according  to  the  principles  of  the  method 
and  procedure  adopted  by  the  court  of  chan- 
cery, and  to  decide  them  in  accordance  with 
the  doctrines  and  rules  of  equity  jurisprud- 
ence.1 

Ordinarily,  the  term  "jurisdiction"  means  the  power  pos- 
sessed by  a  court  to  determine  judicially  a  case  presented  to 
it  for  decision.  If  such  power  is  not  possessed  in  reference 
to  a  particular  case,  the  determination  of  the  court  in  re- 
spect thereto  is  of  no  force  or  effect.  This  strict  meaning  of 
the  term  is  not  generally  applied  when  used  in  connection 
with  courts  of  equity.  An  action  may  not  properly  be 
brought  in  a  court  of  equity,  and  yet  its  judgment  therein  is 
not  necessarily  null  and  void,  unless  objection  be  made  by 
the  defendant  at  the  commencement  of  the  action.* 

A  court  of  equity  cannot  try  issues  arising  in  the  prosecu- 
tion of  a  criminal  indictment,  and  its  judgment  therein  would 
be  unenforceable.  Equity  can  neither  prevent  the  commis- 
sion of  crimes,8  interfere  with  their  prosecution,4  nor  par- 

i  6.     i  Pom.  Eq.  Jur.  |  129. 

«  Cummlngs  v.  Mayor,  etc.,  11  Paige  (N.  Y.)  596;  Bank  of  Utlca 
T.  Mersereau,  8  Barb.  Ch.  (N.  Y.)  528;  Creely  v.  Brick  Co.,  103  Mass. 
614. 

*  Equity  will  not  restrain  the  issuance  of  licenses  to  gamblers  by 
the  officers  of  a  fair  association,  since  gambling  is  a  violation  of 

*  See  note  4  on  following  page. 


§    6)  EQUITY    JURISDICTION    DEFINED.  29 

don  a  punishment.  But  a  person  who  is  menaced  in  his 
property  rights  by  the  unlawful  act  of  another  is  not  pre- 
cluded from  suing  in  equity  merely  because  the  unlawful  act 
is  also  a  crime.  It  is  only  when  the  injury  is  general  and 
public  in  its  effects,  and  no  private  right  is  violated,  in  con- 
tradistinction to  the  rights  of  the  rest  of  the  public,  that  in- 
dividuals are  precluded  from  bringing  suits.5 


the  Criminal  Code,  which  affords  ample  means  for  its  suppression. 
Cope  v.  Association,  90  111.  489.  And  injunction  has  been  refused 
against  a  violation  of  the  Sunday  laws.  State  v.  Schweickardt, 
109  Mo.  406,  19  S.  W.  47;  Sparhawk  v.  Railway  Co.,  54  Pa.  401. 

*  It  was  laid  down  in  an  early  case  (1742)  by  Lord  Hardwicke 
that  chancery  has  no  restraining  power  over  criminal  prosecutions. 
Mayor,  etc.,  of  York  v.  Pilkington,  2  Atk.  302.  And  see,  also,  Mon- 
tague v.  Dudman,  2  Ves.  Sr.  396,  398;  Attorney  General  v.  Cleaver, 
18  Ves.  218;  Turner  v.  Turner,  15  Jur.  218;  Saull  v.  Browne,  10 
Ch.  App.  64.  In  our  courts  the  same  principle  has  been  generally 
unheld.  West  v.  Mayor,  etc.,  10  Paige  (N.  Y.)  539;  Davis  v.  Society, 
75  N.  Y.  362;  Tyler  v.  Hamersley,  44  Conn.  419,  422,  26  Am.  Rep. 
479;  Stuart  v.  Board,  83  111.  341,  25  Am.  Rep.  397;  Devron  v.  First 
Municipality,  4  La.  Ann.  11;  Moses  v.  Mayor,  etc.,  52  Ala.  198; 
Gault  v.  Wallis,  53  Ga.  675;  Phillips  v.  Mayor,  etc.,  61  Ga.  386; 
Cohen  v.  Goldsboro  Com'rs,  77  N.  C.  2;  Waters  Pierce  Oil  Co.  v. 
City  of  Little  Rock,  39  Ark.  412;  Spink  v.  Francis  (C.  C.)  19  Fed. 
670;  Spink  v.  Francis  (C.  C.)  20  Fed.  567;  Suess  v.  Noble  (C.  C.) 
31  Fed.  855;  In  re  Sawyer,  124  U.  S.  210,  8  Sup.  Ct.  482,  31  L.  Ed. 
402;  Hemsley  v.  Myers  (C.  C.)  45  Fed.  283;  Crighton  v.  Dahmer, 
70  Miss.  602,  13  South.  237,  21  L.  R.  A.  84,  35  Am.  St  Rep.  666; 
Chisholm  v.  Adams,  71  Tex.  678,  10  S.  W.  336;  Poyer  v.  Village  of 
Des  Plaines,  123  111.  Ill,  13  N.  E.  819. 

o  The  fact  that  the  accumulation  of  nitroglycerin  within  the  cor- 
porate limits  of  a  city  is  made  a  crime  does  not  prevent  a  private 
citizen  from  securing  an  injunction,  where,  in  case  of  an  explosion, 
he  would  suffer  an  injury  in  person  or  property  not  sustained  by 
the  public  in  general.  People's  Gas  Co.  v.  Tyner,  131  Ind.  277,  31 
N.  E.  59,'  16  L.  R.  A.  443,  31  Am.  St.  Rep.  433;  Greenfield  Gas  Co. 
v.  Gas  Co.,  131  Ind.  599,  31  N.  E.  61.  And  a  threatened  violation 
of  an  ordinance  prohibiting  the  erection  of  wooden  buildings  with- 
in the  fire  limits  of  a  city  will  be  enjoined  at  the  suit  of  private 
persons,  who  would  sustain  irreparable  injury,  though  the  build- 
ing would  not  be  a  nuisance  per  se.  First  Nat.  Bank  of  Mt.  Ver- 
non  v.  Sarlis,  129  Ind.  201,  28  N.  E.  434,  28  Am.  St.  Rep.  185.  The 
fact  that  a  nuisance  is  a  crime,  and  punishable  as  such,  does  not 
deprive  equity  of  its  jurisdiction  to  restrain  and  abate  by  injunc- 
tion. Minke  v.  Hopeman,  87  111.  450,  29  Am.  Rep.  63;  Blanc  v. 
Murray,  36  La.  Ann.  162,  51  Am.  Rep.  7. 


30  GENERAL    PRINCIPLES    GOVERNING.  (Ch.    2 


EXEKCISE  OF  EQUITY  JURISDICTION. 

7.  To  warrant  the  exercise   of  equity  jurisdiction, 
either 

(a)  The  cause  of  action  must  involve  the  main- 

tenance, or  protection  of  an  equitable  right, 
estate,  or  interest;  or 

(b)  The   remedy    sought  must  be  in  its    nature 

purely  and  exclusively  equitable;  or 

(c)  The  remedy  afforded  by  common  law  must  be 

inadequate,  and  the  remedy  sought  in  equity 
one  which,  under  the  facts  and  circum- 
stances of  the  case,  can  only  be  made  com- 
plete and  adequate  through  equitable  modes 
of  procedure. 

There  are  many  titles  and  interests  not  cognizable  at  law. 
The  common  law  recognizes  none  but  the  legal  title.  He 
who  seeks  the  aid  of  a  law  court  must  base  his  demand  upon 
his  legal  title.  Without  such  title  his  suit  will  not  succeed. 
But  frequently  the  legal  title  to  an  estate  is  vested  in  one 
person,  while  the  right  to  its  use  and  enjoyment  is  in  anoth- 
er. This  right  constitutes  an  equitable  interest,  which,  being 
ignored  by  the  common-law,  can  only  be  preserved  and  pro- 
tected in  equity.  This  right  is  generally  termed  a  trust  es- 
tate, and  the  person  holding  the  estate  is  the  trustee,  and  the 
person  for  whose  benefit  the  trust  is  held  is  the  beneficiary, 
or  cestui  que  trust.1  Many  other  rights,  titles,  and  interests 
in  property  have  been  created  by  equity  which  were  unknown 
at  common  law,  and  which  have  never  been  recognized  in 
law  courts.  Among  these  are  the  mortgagor's  equity  of  re- 
demption,* and  the  rights  of  assignees  of  choses  in  action,' 
and  of  equitable  lienors.*  Cases  involving  the  enforcement, 


|7.    i  See  post  c.  14,  p.  354. 
«  See  post,  c.  17,  p.  408. 
•  See  post,  c.  19,  p.  493. 
«  See  post,  c.  18,  p.  474. 


§  8)  ADP:QUATE  REMEDY  AT  LAW.  31 

maintenance,  and  protection  of  these  equitable  rights  fall 
within  the  exclusive  jurisdiction  of  courts  of  equity.  Unless 
otherwise  provided  by  legislative  enactment,  such  cases  are 
never  cognizable  by  courts  of  law. 

There  are  also  purely  equitable  remedies,  which  are  ad- 
ministered by  courts  of  equity,  and  not  by  courts  of  law. 
These  remedies  do  not  necessarily  depend  upon  the  estate 
involved  for  their  equitable  character.  They  are  equitable 
because  they  can  only  be  obtained  in  courts  of  equity.  A 
suit  for  quieting  title,  or  for  removing  a  cloud  upon  title  by 
the  cancellation  of  an  adverse  instrument,  may  result  in  the 
establishment  of  a  legal  estate ;  but,  nevertheless,  the  remedy 
itself  is  within  the  exclusive  jurisdiction  of  a  court  of  equity. 
A  suit  for  the  specific  performance  of  a  contract  is  within 
this  exclusive  jurisdiction,  although  an  action  might  be  main- 
tained at  law  for  the  recovery  of  damages  for  the  breach  of 
the  contract  sought  to  be  enforced. 


ADEQUATE  REMEDY  AT  LAW. 

8.  Equity  has  no  jurisdiction  where  there  is  an 
adequate,  complete,  and  certain  remedy  at 
law.  If  the  law  falls  short  of  what  the 
suitor  is  entitled  to,  if  it  does  not  furnish 
him  full  and  complete  justice,  or  if  it  affords 
him  a  remedy  which  is  doubtful  or  obscure, 
a  jurisdiction  in  equity  is  established.1 

§  8.  i  Story,  Eq.  Jur.  33.  And  see  National  Bank  of  Commerce 
of  Tacoma,  Wash.,  v.  Wade  (C.  C.)  84  Fed.  10;  Grand  Trunk  Ry. 
Go.  v.  Railroad  Oo.  (C.  C.)  85  Fed.  87.  A  singular  and  interesting 
case  Involving  the  question  of  the  power  of  equity  to  intervene 
where  no  remedy  exists  at  law  is  that  of  Dr.  David  Kennedy  Corp. 
v.  Kennedy,  165  N.  Y.  353,  59  N.  E.  133,  55  N.  Y.  Supp.  917.  In  this 
case  the  defendant  was  engaged  in  the  manufacture  and  sale  of 
proprietary  remedies,  and  sold  to  the  plaintiff,  a  corporation,  his 
business  and  the  sole  and  absolute  right  to  use  his  name  and 
address,  viz.  the  names,  "Dr.  David  Kennedy,  of  Rondout,  N.  Y., 
or  Dr.  D.  Kennedy,  Rondout,  N.  Y.,  in  connection  with  the  manu- 
facture of  proprietary  medicines,"  which  business  was  largely  car- 
ried on  by  advertising  and  correspondence  under  such  names.  It 


32  GENERAL   PRINCIPLES    GOVERNING.  (Ch.  2 

The  inadequacy  of  the  legal  remedy  may  be  said  to  be  the 
foundation  of  the  concurrent  jurisdiction  of  courts  of  equity. 
The  concurrent  jurisdiction  covers  all  cases  in  which  no  ade- 
quate remedy  can  be  obtained  at  law  except  by  circuity  of 
action  or  by  multiplicity  of  suits,  and  adequate  and  complete 
relief  can  be  given  in  equity  in  one  and  the  same  action ;  as 
in  the  cases  of  accident,  mistake,  and  fraud. 

Whenever  a  court  of  law  is  competent  to  take  cognizance 
of  a  right,  and  has  power  to  proceed  to  a  judgment  which 
affords  adequate,  complete,  and  certain  relief,  the  plaintiff 
must  proceed  at  law,  because  the  defendant  has  a  constitu- 
tional right  to  a  trial  by  jury.2  This  principle  has  been  ob- 
served, not,  perhaps,  from  the  very  earliest  period  of  the 
recorded  history  of  the  English  chancery  court,  but  certain- 
ly ever  since  equity  jurisprudence  has  been  reduced  to  a  defi- 
nite system.8  Courts  of  equity  have  steadily  refused  to  en- 
tertain jurisdiction  of  actions  for  the  recovery  of  land  when 
the  legal  remedy  by  ejectment  is  adequate,*  and  so,  where 

was  held  that  the  purchaser  had  an  absolute  right  to  use  such 
names  and  addresses.  Where  It  afterwards  appears  that  the 
seller  is  receiving  and  opening  letters  belonging  to  the  corporation, 
addressed  in  the  forms  aforesaid,  such  acts  are  properly  restrained 
by  injunction.  But  since  the  parties,  by  their  contract,  made  it 
difficult  to  so  separate  their  letters  as  to  give  each  Its  or  his  own, 
and  their  relations  are  so  unfriendly  that  neither  should  be  allowed 
to  receive  and  open  letters  of  a  confidential  character  Intended  for 
the  other,  the  court  directed  the  appointment  of  a  referee,  with 
power  to  receive,  open,  and  read  all  letters  sent  to  such  names  and 
addresses,  and  to  make  prompt  distribution  of  the  same  according 
to  their  true  destination. 

*  Hipp  v.  Babln,  19  How.  271,  277,  15  L.  Ed.  633;  Lewis  v.  Cocks, 
23  Wall.  466,  467,  23  L.  Ed.  70;  Smyth  v.  Banking  Co.,  141  U.  S. 
656,  12  Sup.  Ct  113,  35  L.  Ed.  891;  Kllllan  v.  Ebbinghaus,  110  U. 
S.  568,  573,  4  Sup.  Ct.  232,  28  L.  Ed.  246;  Porter  v.  Water  Co.,  84 
Me.  195,  24  Atl.  814;  Watson  v.  Ferrell,  34  W.  Va.  406,  12  S.  E.  724; 
McMlllen  v.  Mason,  71  Wis.  405,  37  N.  W.  253;  Williams  v.  Haynes, 
78  Ga.  133;  A  very  v.  Woolen  Co.,  82  N.  Y.  582;  Alger  v.  Anderson 
(C.  C.)  92  Fed.  696;  Turtle  v.  Batchelder  &  Lincoln  Co.,  170  Mass. 
81").  49  N.  E.  640;  Pulezer  v.  Kucharzyk.  116  Mich.  92,  74  N.  W.  304. 

»  Lewis  v.  Cocks,  23  Wall.  466,  467,  23  L.  Ed.  70;  Tenham  T.  Her- 
bert, 2  Atk.  483. 

«  Cox  v.  Boyleston,  57  Ala.  270;  Lewis  v.  Cocks,  23  Wall.  466, 
23  L.  Ed.  70;  Danforth  v.  Roberts,  20  Me.  307;  Weiss  v.  Levy,  166 
Mass.  290,  44  N.  E.  225;  McClanahan  v.  West,  100  Mo.  309,  13  S. 


§    8)  ADEQUATE   REMEDY    AT   LAW. 

the  controversy  involves  merely  the  legal  title  to  lands,  there 
is  an  adequate  remedy  at  law,  and  equity  has  no  jurisdiction.5 
And  equity  will  not  assume  jurisdiction  of  a  case  involving 
a  question  of  unliquidated  damages  for  a  tort.8  Where,  by 
the  commission  of  a  tort  in  the  conversion  of  personal  prop- 
erty, a  right  to  damages  has  accrued  to  a  person,  the  rem- 
edy is  at  law,  and  there  is  no  reason  for  a  resort  to  equity.7 
And  in  cases  arising  from  violations  of  contract  obligations, 
where  the  plaintiff  may  be  amply  compensated  by  an  award 
of  damages,  the  legal  remedy  is  adequate,  and  a  suit  in  equity 
will  not  lie.8  A  suit  in  equity  cannot  be  maintained  to  re- 


W.  674;  Hay  thorn  v.  Margerem,  7  N.  J.  Eq.  324;  Mead  v.  Camfield, 
11  N.  J.  Eq.  38;  Hoores  v.  Townshend,  102  N.  Y.  387,  393,  7  N.  E. 
401;  Jenkins  v.  Hannan  (C.  C.)  26  Fed.  657  (in  this  case  it  was 
sought  to  set  aside  deeds  made  on  orders  of  sale  of  lands  in  judi- 
cial proceedings,  which  were  alleged  to  be  null  and  void,  and  for 
an  account  of  rents  and  profits;  it  was  held  that  there  was  a  plain 
and  adequate  remedy  at  law  by  an  action  of  ejectment  for  the 
recovery  of  the  possession  of  the  lands  and  the  mesne  profits,  and 
that  equity  has  no  jurisdiction);  Dalton  v.  Hamilton,  50  Cal.  422; 
Daniel  v.  Green,  42  111.  471;  Wells  v.  Lamney,  88  111.  174;  Janney 
v.  Spedden,  38  Mo.  395;  Bobb  v.  Woodward,  42  Mo.  482;  Odle  v. 
Odle,  73  Mo.  289;  Harper  v.  Crawford,  13  Ohio,  129;  Long's  Appeal, 
92  Pa.  171. 

s  Lacassagne  v.  Chapuis,  144  U.  S.  119,  12  Sup.  Ct.  659,  36  L.  Ed. 
368;  Watts  v.  Frazer,  80  Ala.  186;  Freeman  v.  Timanus,  12  Fla. 
393;  Hinton  v.  Fox,  13  Ky.  380;  Campbell  v.  Whittingham,  28  Ky. 
96,  20  Am.  Dec.  241;  Brown's  Heirs  v.  Brown's  Devisees,  31  Ky.  39; 
Cowman  v.  Colquhoun,  60  Md.  127;  Ragland  v.  Green,  22  Miss. 
194;  Waddell  v.  Beach,  9  N.  J.  Eq.  793;  Barry  v.  Shelby,  5  Tenn. 
229;  Seeley  v.  Baldwin,  185  111.  211,  56  N.  E.  1075;  Campbell  v. 
Adsit,  111  Mich.  575,  70  N.  W.  141;  Leininger  v.  Railroad  Co.,  180 
Pa.  288,  36  Atl.  738. 

«  Brown  v.  Railway  Co.,  96  111.  297;  Crislip  v.  Cain,  19  W.  Va. 
438. 

T  Lacombe  v.  Forstall,  123  U.  S.  562,  8  Sup.  Ct.  247,  31  L.  Ed.  255; 
Bay  City  Bridge  Co.  v.  Van  Etten,  36  Mich.  210. 

»  Walker  v.  Brown,  63  Fed.  204,  11  C.  C.  A.  135;  Turner  v.  Flinn, 
67  Ala.  529;  Powell  v.  Maguire,  43  Cal.  11  (in  this  case  two  persons 
agreed  to  form  a  partnership  to  do  certain  work,  but  the  partner- 
ship was  never  launched,  and  one  of  the  persons  carried  on  the 
work  alone.  It  was  held  that  the  only  remedy  for  the  person 
excluded  was  in  an  action  at  law  for  breach  of  contract);  West 
v.  Howard,  20  Conn.  581;  Kellogg  v.  Moore,  97  111.  282;  Coquillard 
Y.  Suydani,  8  Blackf.  (Ind.)  24;  Slaughter  v.  Nash,  1  Litt.  (Ky.)  324. 
EATON.EQ.— 3 


34  GENERAL   PRINCIPLES    GOVERNING.  (Ch.  2 

scind  an  agreement  for  the  sale  of  real  estate  by  reason  of 
a  defect  in  the  title,  or  a  want  of  power  to  sell  in  the  ven- 
dors. Such  a  suit  is  unnecessary,  since  there  is  a  perfect 
defense  to  any  action  which  might  be  brought  by  the  ven- 
dors to  enforce  the  agreement.8  The  mere  fact  that  dam- 
ages for  breach  of  contract  cannot  be  ascertained  with  preci- 
sion does  not  warrant  a  court  of  equity  in  issuing  an  injunc- 
tion and  decreeing  specific  performance.10  But  there  are 
many  cases  where  courts  of  equity  have  concurrent  jurisdic- 
tion with  courts  of  law,  and  courts  of  equity  may  then  as- 
sume jurisdiction,  although  courts  of  law  may  afford  a  rem- 
edy. But  such  concurrent  jurisdiction  will  not  be  exercised 
unless  there  is  some  equitable  circumstance  to  give  jurisdic- 
tion ;  such  as  fraud,  irreparable  injury,  trust,  accident,  or  the 
like.11  And  where  a  court  of  equity  has  once  assumed  ju- 
risdiction it  cannot  be  ousted  by  a  subsequent  proceeding  in 
a  court  of  law.12  Nor  will  courts  of  equity  be  ousted  of  their 
original  jurisdiction  because  courts  of  law  have  adopted  equi- 
table principles.18  But,  unless  the  legal  remedy  is  plain, 
adequate,  and  complete,  and  as  practical  in  its  results,  and  as 
efficient  in  the  administration  of  justice,  as  the  equitable  rem- 

Equlty  will  not  take  Jurisdiction  of  an  action  to  recover  a  simple 
debt  on  the  ground  that  a  pretended  payment  thereon  was  fraudu- 
lent. Andrews  v.  Moen,  162  Mass.  294,  38  N.  E.  505.  And  see 
AJdrich  v.  Lewis,  60  Miss.  229;  Strong  v.  Krebs,  63  Miss.  338;  Linn 
T.  Gunn,  56  Mich.  447,  23  N.  W.  84;  Dougherty  v.  Hughes,  165  111. 
884,  46  N.  E.  229. 

•  Bruner  v.  Meigs,  64  N.  Y.  506,  515;  Rellley  v.  Roberts,  34  N.  J. 
Eq.  299;  Blair  v.  Brabson,  3  Hayw.  (Tenn.)  18;  Bier  v.  Smith,  25  W. 
Va.  830. 

10  Texas  &  P.  Ry.  Co.  v.  City  of  Marshall,  136  U.  S.  393,  10  Sup. 
Ct  846,  34  L.  Ed.  385. 

11  Robinson  v.  Chesseldlne,  4  Scam.  (111.)  332;   Nelson  v.  Betts,  21 
Mo.  App.  219;  Phalen  v.  Clark,  19  Conn.  421,  1  Am.  Rep.  253. 

is  Galnty  v.  Russell,  40  Conn.  450;  Meyer  v.  Saul,  82  Md.  459, 
83  Atl.  539. 

n  Walker  v.  Cheever,  35  N.  H.  339;  Heath  v.  Bank,  44  N.  H. 
174;  Wesley  Church  v.  Moore,  10  Pa.  273,  279,  280;  Sweeny  v. 
Williams,  36  N.  J.  Eq.  627;  Schroeder  v.  Loeber.  75  Md.  195,  23 
Ail.  f.79,  24  Atl.  226;  Gridley  v.  Garrison,  4  Paige  (N.  Y.)  647; 
Minturn  v.  Trust  Co.,  3  N.  Y.  498;  Bell  v.  Dewoody,  1  Overt  (Teun.) 
478;  Meek  v.  Spacher,  87  Va.  162,  12  S.  E.  397. 


§    9)  MULTIPLICITY   OF   SUITS.  35 

edy,  the  jurisdiction  in  equity  will  attach.14  Thus,  a  vendee 
of  land  will  be  compelled  in  equity  to  pay  the  agreed  price, 
though  the  vendor  has  also  a  remedy  at  law  by  action  for 
breach  of  contract ; 1B  and,  where  a  case  involves  such  a  mass 
of  accounts  and  complications  as  to  make  the  remedy  at  law 
inconvenient,  if  not  actually  inadequate,  equity  will  take  ju- 
risdiction.1* The  remedy  at  law  must  be  as  practical  and 
efficient  to  the  ends  of  justice  and  its  prompt  administration 
as  the  remedy  in  equity.17  An  erroneous  adjudication  that 
the  legal  remedy  is  inadequate,  and  that  the  case  is,  there- 
fore, of  equitable  cognizance,  is  not,  however,  necessarily 
void,  within  the  meaning  of  the  general  rule  that  the  judg- 
ment of  a  court  not  having  jurisdiction  of  the  subject-matter 
is  an  absolute  nullity,  and  may  be  attacked  collaterally.18 


MULTIPLICITY  OF  SUITS. 

9.  Equity  will  exercise  its  jurisdiction  to  prevent 

multiplicity  of  suits. 

(a)  Where  the  nature  of  the  wrong-  is  such  that 
at  law  it  would  be  necessary  for  the  injured 
party,  in  order  to  obtain  complete  relief,  to 
bring  a  number  of  actions,  arising  from  the 

»«  Tyler  v.  Savage,  143  U.  S.  79,  95,  12  Sup.  Ct  340,  36  L.  Ed.  82; 
Kilbourn  v.  Sunderland,  130  U.  S.  505,  9  Sup.  Ct.  594,  32  L.  Ed.  1005; 
Thompson  v.  Allen  Co.,  115  U.  S.  550,  6  Sup.  Ct.  140,  29  L.  Ed.  472; 
City  of  Hartford  v.  Chipman,  21  Conn.  488;  Bierbower's  Appeal,  107 
Pa.  14;  Warner  v.  McMullin,  131  Pa.  370,  18  Atl.  1056;  Board  of 
Chosen  Freeholders  of  Essex  Co.  v.  Bank,  48  N.  J.  Eq.  51,  21  Atl. 
185;  Hodges  v.  Rowing,  58  Conn.  12,  18  Atl.  979,  7  L.  R.  A.  87; 
Nease  v.  Insurance  Co.,  32  W.  Va.  283,  9  S.  E.  233;  Cadigan  v. 
Brown,  120  Mass.  403;  Darrah  v.  Boyce,  62  Mich.  480,  29  N.  W. 
102;  Overrnire  v.  Haworth,  48  Minn.  372,  51  N.  W.  121;  Walker  v. 
Daly,  80  Wis.  222,  49  N.  W.  812. 

IB  Hodges  v.  Kowing,  58  Conn.  12,  18  Atl.  979,  7  L.  R.  A.  87. 

i«  Warner  v.  McMullin,  131  Pa.  370,  18  Atl.  1056. 

it  Barthet  v.  City  of  New  Orleans  (C.  C.)  24  Fed.  563;  Rees  v. 
Smith,  1  Ohio,  124,  13  Am.  Dec.  599;  Smith  v.  Machine  Co.,  79  UL 
App.  519;  Boyd  v.  Carbon  Black  Co.,  182  Pa.  206,  37  Atl.  937. 

is  Mellen  v.  Iron  Works,  131  U.  S.  352,  367,  9  Sup.  Ct.  781,  33  L. 
Ed.  178;  Goodman  v.  Winter,  64  Ala.  410,  432,  38  Am.  Rep.  13. 


86  GENERAL    PRINCIPLES    GOVERNING.  (Ch.   2 

same  wrongful  act,  against  the  same  wrong- 
doer. 

(b)  Where  a  party  institutes,  or  is  about  to  in- 

stitute, a  number  of  successive  or  simultane- 
ous actions  against  another  party,  all  de- 
pending upon  the  same  legal  questions  and 
similar  issues  of  fact. 

(c)  Where  a  number   of  persons   have    separate 

and  distinct  rights  of  action  against  the 
same  party,  arising  from  the  same  cause, 
governed  by  the  same  legal  rule,  and  involv- 
ing similar  facts,  and  the  circumstances  are 
such  that  the  rights  of  all  may  be  settled  in 
a  single  suit,  brought  by  one  of  such  per- 
sons in  behalf  of  all. 

(d)  Where  a  party  claims  a  common  right  against 

a  number  of  persons,  the  establishment  of 
which  would  require  a  separate  legal  action 
brought  by  him  against  each  of  such  per- 
sons, and  which  are  of  such  a  nature  that 
they  might  be  determined  in  a  single  suit 
in  equity  brought  against  all  of  such  per- 
sons.1 

It  is  a  familiar  rule  governing  common-law  procedure  that 
no  action  will  lie  upon  a  contract  unless  all  the  parties  named 
as  plaintiffs  have  a  joint  and  common  interest  in  the  contract. 
If  there  are  many  distinct  and  adverse  interests  at  stake,  it  is 
not  possible  to  adjust  them  by  a  single  suit  at  law.  It  is 
the  inadequacy  of  the  law  to  combine  and  adjust  manifold 
and  adverse  claims  and  interests  which  gives  rise  to  the  ju- 

I  9.  *  The  above  division  of  the  cases  In  which  equity  will  Inter- 
rene  to  prevent  multiplicity  of  suits  Is  substantially  the  same  as 
that  adopted  by  Prof.  Pomeroy  In  his  celebrated  work  on  Equity 
Jurisprudence  (section  245),  and  is  probably  as  satisfactory  as  any 
that  can  be  made. 


§    9)  MULTIPLICITY    OF   SUITS.  37 

risdiction  of  equity  to  settle  and  dispose  of  the  whole  con- 
troversy in  a  single  proceeding,  and  thus  prevent  a  multi- 
plicity of  suits. 

The  exercise  of  this  jurisdiction  has  sometimes  assumed 
the  form  of  an  injunction,  called  a  "bill  of  peace,"  to  restrain 
the  prosecutions  of  the  several  actions  seeking  to  litigate 
the  same  right.  The  earliest  instances  of  the  intervention 
of  equity  in  such  cases  seem  to  have  been  for  the  purpose  of 
establishing  a  general  right  in  behalf  of  one  party  as  against 
a  number  of  persons  claiming  distinct  and  individual  inter- 
ests ;  or  for  the  purpose  of  restraining  further  actions  of 
ejectment  to  recover  the  premises  by  a  single  adverse  claim- 
ant, after  several  successive  actions  had  already  been  pros- 
ecuted without  success.  Equity  will  not  assume  jurisdiction 
to  prevent  multiplicity  of  action  unless  it  appears  that  the 
suits  which  have  been  or  are  about  to  be  instituted  are  based 
upon  a  valid  cause  of  action,  and  it  has  been  held  that  a  court 
of  equity  would  not  intervene  unless  it  appeared  that  the 
party  had  some  defense  to  the  numerous  suits  brought,  or 
about  to  be  brought,  against  him.8 

Suits  between  Two  Parties. 

The  first  and  second  classes  mentioned  in  the  black  let- 
ter text  refer  to  suits  brought  by  one  party  against  another. 
Among  the  cases  belonging  to  the  first  class,  where  a  per- 
son would  be  obliged  to  bring  a  number  of  actions  at  law  in 
succession  in  order  to  secure  complete,  or  even  partial,  relief, 
and  in  which  equity  will  interfere  to  prevent  multiplicity  of 
suits,  are  actions  to  abate  nuisances,8  to  restrain  continuous 
waste,4  continuous  trespass,6  and  to  settle  disputed  bound- 
aries, involving  acts  of  trespass  by  the  defendant.  The  sec- 
ond class  of  cases  includes  those  where  successive  actions  of 
ejectment  have  been  brought  by  one  person  against  another, 

»  Storrs  v.  Railroad  Co.,  29  Fla.  617,  11  South.  226. 

«  Corning  v.  Nail  Factory,  39  Barb.  (N.  Y.)  311,  327;  Cadigan  v. 
Brown,  120  Mass.  493;  Carlisle  v.  Cooper,  21  N.  J.  Eq.  576;  Scheetz'a 
Appeal,  35  Pa.  88;  Sheldon  v.  Rockwell,  9  Wis.  166,  76  Am.  Dec. 
265. 

*  Hughlett  v.  Harris,  1  Del.  Ch.  349,  352. 

5  Hacker  v.  Barton.  84  111.  313;  Livingston  v.  Livingston,  6  Johns. 
Ch.  (N.  Y.)  497;  Wheelock  v.  Noonan,  108  N.  Y.  179,  186,  15  N.  EL 
67;  Murdock  Y.  Railroad  Co.,  73  N.  Y.  579. 


88  GENERAL    PRINCIPLES    GOVERNING.  (Ch.   2 

and  the  defendant  finally  resorts  to  a  suit  in  equity  to  quiet 
his  title,  and  to  restrain  all  further  actions  of  ejectment  by 
the  plaintiff;  6  and  also  those  where  numerous  simultaneous 
actions  are  brought  against  one  party  by  another,  all  involv- 
ing the  same  questions,  and  the  party  proceeded  against  ap- 
plies to  a  court  of  equity  for  the  purpose  of  having  all  the 
actions  decided  by  one  trial  and  decree.7 

Suits  between  One  Party  and  a  Number  of  Parties. 

The  jurisdiction  of  equity  to  prevent  multiplicity  of  suits 
whenever  numerous  persons  have  a  community  of  interest  or 
a  common  right  or  title  in  the  subject-matter  of  controversy, 
has  been  long  established ;  and  it  is  immaterial  whether  the 
right  be  asserted  by  one  against  many,  or  by  many  against 
one.  It  has  been  frequently  stated  that  equity  will  assume 
jurisdiction  whenever  the  rights  of  the  numerous  persons  de- 
pend for  solution  on  the  same  questions  of  law  and  fact, 
though  purely  legal  rights  are  involved,  and  purely  legal  re- 
lief can  be  conferred.8  This  statement  of  the  rule  has  been 
criticized,  and  it  is  asserted  that,  when  no  community  of  in- 
terest in  the  subject-matter  of  the  suit  subsists  between  the 
numerous  persons,  there  must  exist  some  recognized  ground 
lor  equitable  interference,  aside  from  mere  multiplicity  of 
suits.  In  a  comparatively  recent  Mississippi  case  *  it  ap- 
peared that  a  number  of  persons  sued  a  railroad  company  at 
law  for  the  destruction  of  their  property  by  fire,  alleged  to 
have  been  caused  by  the  negligence  of  the  defendant.  The 
company  then  filed  its  bill  in  equity  to  enjoin  the  prosecu- 
tion of  the  actions  at  law,  and  to  compel  a  determination  of 
the  whole  matter  in  a  single  suit  in  equity,  on  the  ground  that 
the  same  questions  of  law  and  fact  were  involved  in  each  case. 
The  court,  after  an  exhaustive  review  of  all  the  authorities, 


•  Eldridge  v.  Hill,  2  Johns.  Ch.  (N.  T.)  281;  Woods  v.  Monroe,  17 
Mich.  238;    Patterson  v.  McCamant,  28  Mo.  210. 

T  Third  Ave.  It.  Co.  v.  Mayor,  etc.,  54  N.  Y.  159;   West  v.  Same, 
10  Paige  (N.  Y.)  539;   Kensington  v.  White.  3  Price,  164. 

•  Pom.  Eq.  Jur.  §§  250,  209;    Phelps,  Jud.  Eq.  §  230;    Preteca  v. 
Land  Grant  Co.,  4  U.  8.  App.  826,   1  C.  C.  A.  607,  50  Fed.  674; 
Osborne  v.  Railroad  Co.  (C.  C.)  43  Fed.  826. 

•  Trlbette  v.  Railroad  Co.   (1892)  70  Miss.  182,  12  South,  32,  19 
L.  R.  A.  000,  35  Am.  St  Rep.  642. 


§    10)      RETENTION    OF  JURISDICTION   TO   AWARD   RELIEF.  39 

denied  the  equity  jurisdiction  in  such  cases  ;  saying :  "There 
must  be  some  recognized  ground  of  equitable  interference,  or 
some  community  of  interest  in  the  subject-matter  of  the  con- 
troversy, or  a  common  right  or  title  involved,  to  warrant  the 
joinder  of  all  in  one  suit;  or  there  must  be  some  common 
purpose  in  pursuit  of  a  common  adversary,  where  each  may 
resort  to  equity,  in  order  to  be  joined  in  one  suit;  and  it  is 
not  enough  that  there  is  a  community  of  interest,  merely,  in 
the  questions  of  law  or  fact  involved."  10 


RETENTION     OF    JURISDICTION    TO    AWARD    COM- 
PLETE RELIEF. 

10.  When  once  equity  has  interfered  to  prevent  a 
•wrong  or  to  preserve  a  right,  it  -will  retain 
its  jurisdiction  until  a  complete  remedy  is 
afforded,  although  it  may  be  necessary  to 
determine  purely  legal  questions.1 

Lord  Nottingham  has  said :  "Where  this  court  can  deter- 
mine the  matter,  it  shall  not  be  a  handmaid  to  other  courts, 
nor  beget  a  suit  to  be  ended  elsewhere."  2  When  once  the 

10  The  following  cases  may  be  cited  in  support  of  the  opinion  of 
the  court  in  the  above-cited  Mississippi  case:  Leliigh  Val.  R.  Co. 
v.  McFarlan,  31  N.  J.  Eq.  730;  National  Park  Bank  of  New  York  v. 
Goddard,  131  N.  Y.  494,  30  N.  E.  566;  Hanstein  v.  Johnson,  112  N. 
C.  253,  17  S.  E.  155;  Northern  Pac.  R.  Co.  v.  Amacker  (C.  C.)  46 
Fed.  233. 

§  10.  i  Ober  v.  Gallagher,  93  U.  S.  199,  23  L.  Ed.  829;  Houston  v. 
Faul,  86  Ala.  232,  5  South.  433;  Ord  v.  McKee,  5  Cal.  515;  Savage 
v.  Berry, -3  111.  545;  Wade  v.  Bunn,  84  111.  117;  Mitchell  v.  Shortt, 
113  111.  251,  1  N.  E.  909;  Albrecht  v.  Lumber  Co.,  126  Ind.  318,  26 
N.  E.  157  (in  which  case  it  was  held  that  a  court  of  equity  has  juris- 
diction to  decree  a  foreclosure  of  a  mechanic's  lien,  and,  where  It 
has  acquired  a  rightful  Jurisdiction  for  one  purpose,  it  retains  it 
for  all  legitimate  purposes,  and  will  render  a  money  judgment  where 
It  is  an  incident  of  a  decree  against  specific  property);  Rickle  v. 
Dow,  39  Mich.  91;  Chase  v.  Boughton,  93  Mich.  285,  54  N.  W.  44; 
Ostrander  v.  Weber,  114  N.  Y.  95,  21  N.  E.  112;  Oliver  v.  Pray,  4 
Ohio,  175,  19  Am.  Dec.  595;  Rison  v.  Moon,  91  Va.  384,  22  S.  E. 
165. 

a  Parker  v.  Dee,  2  Ch.  Gas.  200. 


40  GENERAL    PRINCIPLES    GOVERNING.  (Ch.   2 

jurisdiction  has  been  acquired,  it  will  be  retained  until  the 
whole  cause  is  determined,  and  all  questions,  both  legal  and 
equitable,  relating  to  the  subject-matter  of  the  controversy, 
have  been  decided.*  To  such  an  extent  has  this  rule  been 
carried  that  it  has  been  declared  that,  if  the  controversy  con- 
tains any  equitable  feature,  or  requires  any  purely  equitable 
relief  belonging  to  the  exclusive  jurisdiction  of  equity,  or 
pertaining  to  the  concurrent  jurisdiction  of  equity  and  law, 
and  a  court  of  equity  thus  acquires  a  partial  cognizance  of 
the  action,  it  may  go  on  to  a  complete  adjudication,  and  es- 
tablish purely  legal  rights,  and  grant  legal  remedies,  which 
would  otherwise  be  beyond  the  scope  of  its  authority.* 
When,  therefore,  a  court  of  equity  assumes  jurisdiction  to 
restrain  a  continuous  trespass  in  order  to  prevent  a  multi- 
plicity of  suits,  it  may  proceed  to  give  full  relief,  both  foi  the 
tortious  act  and  the  resulting  damages.6  Having  acquired 
jurisdiction,  the  court  cannot  be  devested  thereof  because  it 
appears  that  adequate  relief  may  be  reached  by  a  merely  per- 
sonal judgment."  Where,  in  an  equitable  action,  relief  is 
sought  of  a  purely  equitable  nature,  and,  as  incident  thereto, 
an  award  of  damages  is  asked,  a  court  of  equity  will  proceed 
to  dispose  of  the  whole  matter,  and  render  a  judgment  for 
damages.1 

•  Cathcart  v.  Robinson,  5  Pet  264,  8  L.  Ed.  120;  Tyler  v.  Savage, 
143  U.  S.  79,  97,  12  Sup.  Ct  340,  36  L.  Ed.  82;   Gormly  v.  Clark.  1;J4 
U.  S.  338,  349,  10  Sup.  Ct.  554,  33  L.  Ed.  909;    Milkman  v.  On!  way. 
106  Mass.  232;   Combs  v.  Scott,  76  Wis.  662,  671,  45  N.  W.  532;  Pool 
v.  Docker,  92  111.  501;    McMurray  v.  Van  Gilder,  56  Iowa,  <;<>.->.  !> 
N.  W.  903.    While  It  is  not  within  the  province  of  a  court  of  equity 
to  remove  a  cloud  from  title  when  complainant  is  not  in  possf»s- 
sion,  yet,  when  other  distinct  grounds  of  jurisdiction  are  averred, 
the  court,  having  assumed  Jurisdiction  for  one  purpose,  will  retain 
it,  that  the  whole  litigation  may  be  settled,  and  complete  Justice 
done  between  the  parties.    Shipman  v.  Furniss,  69  Ala.  555,  44  Aiu. 
Dec.  528. 

«  McGean  v.  Railway  Co.,  133  N.  T.  9,  30  N.  E.  647. 

•  Lynch  v.  Railway  Co.,  129  N.  Y.  274,  29  N.  E.  315. 

•  Van  Rensselaer  v.  Van  Rensselaer,  113  N.  Y.  207,  214,  21  N.  E. 
75. 

TWIswnll  v.  McGown.  2  Barb.  (N.  Y.)  270;  White  T.  Fratt,  13 
Cal.  521;  Burdell  v.  Comstock  (C.  C.)  15  Fed.  395.  Damages  may 
be  recovered  In  a  suit  to  enjoin  a  nuisance,  Fnrris  v.  Dudley,  78 
Ala.  124,  50  Am.  Eep.  24;  Fleischner  T.  Investment  Co.,  25  Or.  119. 


§    11)      ACQUISITION   AT   LAW   OF   SIMILAR   JURISDICTION.  41 


EFFECT     OF    ACQUISITION     BY     COURTS     OP    LAW 

OF  A  JURISDICTION  SIMILAR  TO 

THAT  OF  EQUITY. 

11.  When  courts  of  equity  inherently  possess 
power  to  grant  relief  in  certain  cases  under 
certain  circumstances,  their  jurisdiction  is 
not  lost,  abridged,  or  affected  because  courts 
of  law,  by  judicial  interpretation  or  legisla- 
tive enactment,  have  acquired  a  jurisdiction 
to  grant  relief  in  the  same  kind  of  cases  and 
under  the  same  facts  and  circumstances. 

There  are  many  cases  where  courts  of  law  have  abandoned 
the  arbitrary  rules  which  formerly  restrained  them  in  the  ex- 
ercise of  their  judicial  powers.  Common-law  actions  have 
been  widened  in  their  scope  and  effect,  so  that  now  courts 
of  law  may  grant  adequate  and  complete  relief  which  could 
formerly  be  afforded  by  courts  of  equity  alone.  As  an  ex- 
ample, equity  assumed  jurisdiction  of  actions  on  lost  bonds 
and  sealed  instruments,  because  courts  of  law  refused  to  aid 
the  plaintiff,  who  could  not  produce  the  instrument.  The 
rule  was  changed  by  courts  of  law  permitting  the  plaintiff  to 
declare  on  a  lost  bond.  But  Lord  Thurlon  held  the  jurisdic- 
tion of  equity  over  this  class  of  cases  was  not  thereby  di- 
verted;1 and  Lord  Eldon  some  years  later  said:  "Phis 
court  will  not  suffer  itself  to  be  ousted  of  any  part  of  its  origi- 

35  Pac.  174;  so  also  in  a  suit  to  restrain  waste,  Lefforge  v.  West,  2 
Ind.  514;  and  to  prevent  a  trespass  for  prior  injuries,  Winslow  v. 
Nayson,  113  Mass.  411.  In  an  action  to  reform  a  contract,  damages 
may  be  awarded  for  a  breach  thereof.  Bidwell  v.  Insurance  Co., 
16  N.  Y.  263.  Equity  may  award  a  money  judgment  where  such 
relief  is  connected  with  a  transaction  over  which  the  court  has  juris- 
diction, although,  for  the  purpose  of  collecting  damages  only,  equity 
would  not  have  Jurisdiction.  Carpenter  v.  Osborne,  102  N.  Y.  552, 
7  N.  B.  823. 

§  11.  i  Atkinson  v.  Leonard,  3  Brown,  C.  O.  218,  224.  See,  to 
the  same  effect,  Toulmin  v.  Price,  5  Ves.  235,  238;  Bromley  v.  Hol- 
land, 7  Ves.  3;  East  India  Co.  v.  Boddam,  9  Yea.  464,  466;  Reeves 
T.  Morgan,  48  N.  J.  Eq.  429,  21  Atl.  1040. 


42  GENERAL    PRINCIPLES    GOVERNING.  (Ch.    2 

nal  jurisdiction  because  a  court  of  law  happens  to  fall  in  love 
with  the  same  or  a  similar  jurisdiction."  2  There  are  a  num- 
ber of  like  instances  where  courts  of  law  have  assumed  a 
jurisdiction  similar  to  that  exercised  by  courts  of  equity,  but 
which  has  not  resulted  in  ousting  equity  of  its  jurisdiction. 
Among  these  are  the  powers  now  generally  possessed  by 
courts  of  law  to  enforce  the  recovery  of  a  fund  impressed 
with  a  trust ;  *  the  granting  of  relief  in  cases  involving  fraud, 
mistake,  or  accident ;  *  actions  brought  by  sureties  against 
co-sureties  upon  an  implied  contract,  which  relief  would  be 
afforded  in  equity  by  suits  for  exoneration  or  contribution.6 
Where  the  powers  of  law  courts  have  been  enlarged  by 
legislative  enactment,  the  jurisdiction  of  equity  is  not  af- 
fected, unless  by  an  express  provision,  or  by  a  fair  and  rea- 
sonable construction  of  the  statute,  it  is  apparent  that  it 
was  the  legislative  intent  to  abrogate  or  abridge  such  juris- 
diction.* While,  in  principle,  the  jurisdiction  of  equity  will 
remain  regardless  of  the  enlargement  of  the  remedies  afford- 
ed by  the  common  law,  the  jurisdiction  may  nevertheless 
become  obsolete,  and  be  practically  abolished,  because  un- 
used. Numerous  instances  of  such  effect  are  mentioned 
elsewhere  in  this  chapter.1 

AUXILIARY  JURISDICTION  OF  EQUITY. 

12.   The    auxiliary  jurisdiction   of  equity   had   its 

origin  in  the  failure  of  the  common  law  to 

(a)  Permit  the  examination  of  either  party  as  a 

•witness,  and  provide  for  the  discovery  and 

«  Eyre  v.  Everett,  2  RUBS.  381,  382. 

•  Varet  v.  Insurance  Co.,  7  Paige  (N.  Y.)  560;   New  York  Ins.  Co 
v.  Roulet,  24  Wend.  (N.  Y.)  505;    Kirkpatrtck  v.  McDonald,  11  Pa. 
887,  3U2. 

«  People  v.  Houghtallng,  7  Cal.  348,  351;  Boyce's  Ex'rs  v.  Grundy, 
8  Pet.  210,  215,  7  L.  Ed.  655;  Babcock  v.  McCamant,  53  111.  214, 
217. 

•  Sailly  v.  Elmore,  2  Paige  (N.  Y.)  497,  499. 

•  Atkinson  v.  Leonard,  3  Brown,  C.  C.  218,  224.    Force  v.  City  of 
Ellznlu'th.  '-'7   N.  J.    Eq.   408;    Darst  v.   Phillips,  41   Ohio   St   514; 
Howell  v.  Moores,  127  111.  G7,  19  N.  E. 

»  Ante,  p.  20. 


§    12)  AUXILIARY    JURISDICTION    OF    EQUITY.  43 

inspection  of  books  and  documents  in  pos- 
session of  either  party. 

(b)  Provide  for  the  taking  of  testimony  by  com- 
mission before  trial,  or  before  the  com- 
mencement of  an  action. 

The  auxiliary  jurisdiction  has  reference  entirely  to  the 
procedure  employed  for  the  enforcement  of  rights  and  reme- 
dies. It  is  not  proposed  in  this  place  to  discuss  at  length 
the  exercise  of  this  jurisdiction.  Bills  of  discovery,1  bills  to 
perpetuate  testimony,2  and  the  examination  of  witnesses  de 
bene  esse,3  will  be  considered  in  another  part  of  this  work. 
It  is  only  desirable  here  to  mention  the  so-called  "auxiliary 
jurisdiction"  of  equity  as  one  of  the  divisions  of  the  subject 
formerly  considered  by  text-book  writers  and  judges.  Be- 
ing entirely  a  matter  of  procedure,  it  has  been  more  affected 
by  modern  legislation  than  either  the  exclusive  or  concur- 
rent equity  jurisdictions.  The  English  supreme  court  judi- 
cature act  of  1873  seems  to  have  effectually  abrogated  bills 
of  discovery,  bills  to  perpetuate  testimony,  and  the  equitable 
procedure  for  the  examination  of  witnesses  de  bene  esse; 
and  the  same  may  be  said  as  to  the  effect  of  statutes  enacted 
in  most  of  the  American  states  adopting  the  reformed  pro- 
cedure. 

§  12.     i  Post,  p.  630.  2  post,  p.  636.  s  Post,  p.  637. 


44  MAXIMS.  (Ch.  3 

CHAPTER  HL 

MAXIMS. 

13.  No  Wrong  without  a  Remedy. 

14.  Equity  Follows  the  Law. 

15.  Equity  Aids  the  Vigilant 

16.  Equality  is  Equity. 

17.  Equal  Equities,  the  Law  Must  Prevail. 

18.  Equal  Equities,  First  in  Order  of  Time  Must  Prevail 

19.  He  Who  Seeks  Equity  Must  Do  Equity. 

20.  He  Who  Comes  into  Equity  Must  Come  with  Clean  Hands. 

21.  Equity  Looks  on  That  as  Done  Which  Ought  to  be  Done. 

22.  Equity  Looks  to  the  Intent  Rather  than  to  the  Form. 

23.  Equity  Imputes  an  Intent  to  Fulfill  an  Obligation. 

24.  Equity  Acts  In  Personam. 

25.  Equity  Acts  Specifically  and  not  by  Way  of  Compensation. 

NO  WRONG  WITHOUT   A  REMEDY. 

13.  Equity  -will  not  suffer  a  wrong  to  be  without  a 

remedy.     (*'Ubi  jus,  ibi  remedium.") 
QUALIFICATION— Equity    will     not     interfere 
where  the  wrong  is  not  within  the  scope  of 
judicial  action. 

In  so  far  as  equity  jurisdiction  had  its  rise  in  the  defects 
of  the  common  law,  the  above  maxim  may  be  said  to  lie  at 
the  foundation  of  that  jurisdiction.  The  maxim  is,  there- 
fore, of  great  importance,  and  has  had  great  influence  upon 
the  growth  and  development  of  equity  jurisprudence.  From 
it  arose  the  exclusive,  the  concurrent,  and  the  auxiliary  juris- 
diction of  courts  of  equity,  since  by  its  application  courts  of 
equity  assumed  control  of  matters  not  cognizable  by  courts 
of  law,  applied  remedies  where  legal  remedies  were  lacking, 
inadequate,  or  incomplete,  and  aided  courts  of  law  in  the 
administration  of  justice  through  channels  not  available  to 
such  courts.  Whenever  a  statute  or  a  constitution  creates  a 
new  right, — especially  if  it  be  equitable  in  its  nature, — and 
provides  no  method  for  its  enforcement,  equity  will  afford 


§    13)  NO    WRONG    WITHOUT   A    REMEDY.  45 

relief.1  Thus  equity  will  enforce  a  statutory  lien  where  the 
statute  itself  provides  no  method  of  enforcement ; 2  and  a 
provision  of  the  interstate  commerce  act  prohibiting  dis- 
crimination against  connecting  carriers  was  enforced  by 
mandatory  injunction  against  employes  of  a  discriminating 
road,  who  had  declared  a  boycott  against  the  connecting  car- 
rier, and  who  had  refused  to  handle  its  freight.3  In  the  last 
case  the  rule  was  stated  as  follows:  "It  is  said  the  orders 
issued  in  this  case  are  without  precedent.  Every  just  order 
or  rule  known  to  equity  courts  was  born  of.  some  emergency, 
to  meet  some  new  condition,  and  was,  therefore,  in  its  time, 
without  a  precedent.  If  based  on  sound  principles,  and 

§  13.  i  Whenever  the  legislature  creates  new  rights  in  parties, 
for  the  enforcement  and  protection  of  which  rights  the  common 
law  affords  no  effectual  remedy,  and  the  statute  itself  does  not 
prescribe  the  mode  in  which  such  rights  are  to  be  protected,  a 
court  of  equity,  in  the  exercise  of  its  acknowledged  jurisdiction, 
is  bound  to  give  to  a  party  the  relief  to  which  he  is  equitably  enti- 
tled under  the  statute.  Innes  v.  Lansing,  7  Paige  (N.  Y.)  583.  See, 
also,  Gibson  v.  Supervisors,  80  Gal.  359,  363,  22  Pac.  225.  One  excep- 
tion to  this  principle  is  in  cases  of  contested  elections,  based 
on  the  theory  that  these  are  political  matters,  with  which  courts 
of  equity  have  no  power  to  deal.  Parmeter  v.  Bourne,  8  Wash. 
45,  35  Pac.  586,  757;  Dickey  v.  Reed,  78  111.  262;  State  v.  Police 
Jury,  41  La.  Ann.  850,  6  South.  777;  Skrlne  v.  Jackson,  73  Ga.  377; 
Sanders  v.  Metcalf,  1  Tenn.  Ch.  419;  McWhirter  v.  Brainard,  5 
Or.  426.  But,  under  circumstances  involving  a  question  as  to  the 
location  of  county  seats  and  the  legality  of  elections  held  for  a 
change  thereof,  the  jurisdiction  of  courts  of  equity  has  been  up- 
held, although  it  necessitated  a  determination  of  the  question  of 
such  legality.  Boren  v.  Smith,  47  111.  482;  Sweatt  v.  Faville,  23 
Iowa,  321. 

2  Gilchrist  v.  Railroad  Co.  (C.  C.)  58  Fed.  708;   Lockett  v.  Robin- 
eon  (Fla.)  12  South.  649. 

3  Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.  (a  C.)  54 
Fed.  746,  IB  L.  R.  A.  395;    Southern  California  R.  Co.  v.  Ruther- 
ford (C.  C.)  62  Fed.  796.     It  should  be  noted,  however,  that  the 
interstate  commerce  law   expressly  authorizes  the  federal  courts 
to  prevent  and  restrain  its  violation.    U.  S.  v.  Elliott  (C.  C.)  62  Fed. 
801.    The  mere  fact  that  a  case  is  novel,  and  Is  not  brought  plainly 
within  the  limits  of  some  adjudged  case,  does  not  defeat  the  juris- 
diction of  equity.     Piper  v.  Hoard,  107  N.  Y.  73,  13  N.  E.  626,  1 
Am.  St.  Rep.  789.     See,  also,  Joy  v.  City  of  St.  Louis,  138  U.  S.  1, 
11  Sup.  Ct.  243,  34  L.  Ed.  843;   Britton  v.  Supreme  Council,  46  N.  J. 
Eq.  102,  38  Atl.  675,  19  Am.  St  Rep.  376;   Wickersham  v.  Critten- 
den,  93  Cal.  32,  28  Pac.  788. 


46  MAXIMS.  (Ch.  3 

beneficent  results  follow  their  enforcement,  affording  nec- 
essary relief  to  one  party  without  imposing  illegal  burdens 
on  the  others,  new  remedies  and  unprecedented  orders  are 
not  unwelcome  aids  to  the  chancellor  to  meet  the  constantly 
varying  demands  for  equitable  relief."  While  this  maxim  is 
frequently  applied  in  dealing  with  newly-created  rights  and 
duties,  before  its  principle  should  be  invoked  careful  exam- 
ination should  be  made  to  see  if  an  efficient  and  adequate 
remedy  does  not  already  exist.4 

Wrong  Must  Be  within  Scope  of  Judicial  Action. 

Equity  does  not  take  upon  itself  to  enforce  every  moral 
right,  such  as  gratitude,  hospitality,  the  sanctity  of  domestic 
relations,  etc.  The  maxim  must  be  understood  as  referring 
to  rights  which  come  within  a  class  enforceable  at  law,  or 
capable  of  being  judicially  enforced,  and  the  enforcement  of 
which  would  not  occasion  a  greater  detriment  or  inconven- 
ience to  the  public  than  would  result  from  leaving  them  to 
be  disposed  of  in  foro  conscientiae.5  Equity  cannot  assume 
control  over  that  large  class  of  obligations  called  "imper- 
fect obligations,"  resting  upon  conscience  and  moral  duty 
only,  unconnected  with  legal  obligations.*  The  total  failure 

« In  Hadden  v.  Spader,  20  Johns.  (N.  Y.)  554,  Justice  Woodworth 
said:  "It  would  be  a  matter  of  surprise,  as  well  as  regret.  If,  in  a 
system  of  jurisprudence  that  has  been  matured  by  the  wisdom  of 
ages,  adequate  remedies  were  not  provided  for  the  violation  of 
every  important  civil  right  Although  this  consideration  will  have 
no  influence  in  deciding  on  a  case  where  the  power  of  the  court  to 
redress  an  alleged  wrong  Is  drawn  in  question,  It  may,  neverthe- 
less, be  useful  in  calling  for  the  most  careful  and  strict  examination 
before  the  point  is  conceded  that  there  is  no  efficient  remedy." 

»  Snell,  Kq.  p.  17;  Smith,  Eq.  p.  12,  citing  Day  v.  Brownrigg,  10 
Ch.  Div.  294;  AJello  v.  Worsley  [1898]  1  Ch.  Div.  274.  Equity  has 
left  many  matters  of  natural  Justice  wholly  unprovided  for  from 
the  difficulty  of  framing  any  general  rules  to  meet  them,  and  from 
the  doubtful  nature  of  the  policy  of  attempting  to  give  a  legal 
sanction  to  duties  of  Imperfect  obligations,  such  as  charity,  grati- 
tude, and  kindness,  or  even  to  positive  engagements  of  parties, 
where  they  are  not  founded  In  what  constitutes  a  meritorious  con- 
sideration. Story,  Eq.  Jur.  §  2. 

•  Rees  v.  City  of  Watertown,  19  Wall  107,  22  L.  Ed.  72.  See, 
also.  In  re  Hoffner's  Estate,  161  Pa.  331,  344,  29  Atl.  33;  Heine  v. 
Commissioners,  19  Wall.  658,  22  L.  Ed.  223;  Finuegan  v.  Fernan- 
dlna,  15  Fla.  379,  21  Am.  Rep.  292. 


§    14)  EQUITY    FOLLOWS   THE   LAW.  47 

of  ordinary  remedies  does  not  confer  on  the  court  of  chan- 
cery an  unlimited  power  to  give  relief.  Such  relief  as  is 
consistent  with  the  general  law  of  the  land,  and  authorized 
by  the  principles  and  practice  of  the  courts  of  equity,  will, 
under  such  circumstances,  be  administered.  But  the  hard- 
ship of  the  case,  and  the  failure  of  the  mode  of  procedure 
established  by  law,  are  not  sufficient  to  justify  a  court  of 
equity  in  departing  from  all  precedent,  and  assuming  an 
unregulated  power  of  administering  abstract  justice  at  the 
expense  of  well-settled  principle.7  The  maxim,  therefore, 
does  not  apply  to  real  wrongs  which  are  not  remediable, 
either  at  law  or  in  equity,  nor  to  apparent  wrongs  which  are 
not  wrongs  at  all,  except  in  the  imagination  of  the  suitor. 


EQUITY  FOLLOWS  THE  LAW. 

14.  Equity  follows  the  law.  ("2Equitas  sequitur 
legem.")  This  maxim  is  to  be  applied  in 
two  classes  of  cases: 

(a)  Where  legal  rights  are  considered  in  a  court 

of  equity,  the  general  rules  and  policy  of 
the  law  must  be  obeyed. 

(b)  Where  equitable  estates  and  interests  are  con- 

sidered, the  court  generally  applies  the 
same  rules  as  are  applied  to  similar  legal 
estates  and  interests  at  common  law. 

This  maxim  is  narrow  in  its  scope,  and  really  does  not 
amount  to  a  general  principle,  though  commonly  considered 

i  Mr.  Justice  Miller,  in  Heine  v.  Commissioners,  19  Wall.  655, 
22  L.  Ed.  223.  In  accordance  with  this  principle,  it  has  also  been 
held  that  the  nonexistence  of  any  method  at  common  law  for  sub- 
jecting a  debtor's  choses  in  action  to  the  payment  of  a  judgment 
does  not  authorize  a  resort  to  equity,  in  the  absence  of  a  fraud, 
trust,  or  other  ground  of  equitable  relief,  or  of  a  statute  conferring 
Jurisdiction.  Donovan  v.  Finn,  1  Hopk.  Ch.  (N.  Y.)  59,  74,  14  Am. 
Dec.  351,  followed  in  Greene  v.  Keene,  14  R.  I.  388,  395,  51  Am.  Rep. 
400,  where  authorities  are  collected.  Contra,  Hadden  T.  Spader, 
20  Johns.  (N.  Y.)  554,  562. 


48  MAXIMS.  (Ch.  3 

as  such.  The  great  mass  of  equity  jurisprudence  has  been 
created  by  an  open  disregard  of  the  law.  Many  equitable 
estates  arose  in  contravention  of  law,  and  equitable  rules 
have  been  applied  thereto,  which,  for  the  most  part,  are 
contradictory  to  corresponding  legal  rules  of  the  most  posi- 
tive and  mandatory  character.  Indeed,  the  whole  theory  of 
the  development  of  the  equity  jurisdiction  has  been  in  oppo- 
sition to  the  principle  that  equity  follows  the  law.1  It  may 
be  said  that  the  maxim  in  its  strict  literal  sense  is  not  of 
sufficient  scope  to  permit  of  its  universal  use  and  application. 
Where  a  rule,  either  of  the  common  or  the  statute  law,  is  di- 
rect and  applicable,  a  court  of  equity  is  as  much  bound  by 
it  as  a  court  of  common  law.  But  equity  will  only  follow 
the  law  so  far  as  it  can  without  sacrificing  claims  grounded 
on  peculiar  circumstances,  which  render  it  incumbent  on  a 
court  of  equity  to  interpose  in  accordance  with  the  maxim 
previously  mentioned  that  equity  will  not  suffer  a  wrong  to 
be  without  a  remedy.  The  meaning  of  the  principle  that, 
where  legal  interests  are  involved,  a  court  of  equity  must 
follow  the  general  rules  and  policy  of  the  law,  is  clearly 
expressed  by  Lord  Chancellor  Talbot,  who  says:  "There 
are  instances,  indeed,  in  which  a  court  of  equity  gives  a  rem- 
edy where  the  law  gives  none ;  but,  where  a  particular  rem- 
edy is  given  by  the  law,  and  that  remedy  is  bounded  and  cir- 
cumscribed by  particular  rules,  it  would  be  very  improper  for 
this  court  to  take  it  up  where  the  law  leaves  it,  and  to  extend 
it  further  than  the  law  allows."  a  And,  where  legal  rights 

i  14.  i  The  maxim  Is,  In  truth,  operative  only  within  a  very  nar- 
row range.  To  raise  it  to  the  position  of  a  general  principle  would 
be  a  palpable  error.  Throughout  the  great  mass  of  its  Jurispru- 
dence, equity,  instead  of  following  the  law,  either  ignores  or  open- 
ly disregards  and  opposes  the  law.  One  large  division  of  equity 
Jurisprudence  lies  completely  outside  of  the  law.  It  is  additional 
to  the  law.  And  while  it  leaves  the  law  concerning  the  same  sub- 
ject-matter in  full  force  and  efficacy,  its  doctrines  and  rules  are 
constructed  without  any  reference  to  the  corresponding  doctrines 
and  rules  of  the  law.  1  Pom.  Eq.  Jur.  §  427. 

*  Heard  v.  Stanford.  Cas.  Talb.  173.  In  this  case  the  court  re- 
fused to  compel  the  husband  to  pay  the  wife's  debts  after  her 
death,  in  consequence  of  his  having  acquired  a  fortune  from  her, 
Blnce  the  failure  of  the  creditors  to  bring  action  against  the  bus- 


§    14)  EQUITY    FOLLOWS    THE   LAW.  49 

and  remedies  are  clearly  defined  and  established  by  law, 
equity  has  no  power  to  change  or  unsettle  those  rights  and 
remedies.  In  dealing  with  legal  rights,  courts  of  equity 
adopt  and  apply  legal  rules  whenever  they  are  applicable.8 
For  instance,  if  a  contract  executed  by  a  municipality  is  void 
at  law  for  want  of  power  to  make  it,  a  court  of  equity  has  no 
jurisdiction  to  enforce  it,  or,  in  the  absence  of  fraud,  acci- 
dent, or  mistake,  to  so  modify  it  as  to  make  it  legal,  and 
then  enforce  it.*  And  judgment  liens,  and  the  rights  of  par- 
ties thereunder,  are  legal  in  their  nature,  but  courts  of  equity 
will  recognize  and  enforce  the  lien,  and  protect  the  rights 
of  the  parties  in  the  same  manner  as  courts  of  law.6  And 
with  respect  to  legal  estates  it  is  well  settled  that  equity 
follows  the  law  relating  to  the  canons  of  descent.  The  rule 
of  primogeniture,  productive  as  it  is  of  the  greatest  hardship 
towards  the  younger  members  of  a  family  by  leaving  them 
without  any  sort  of  provision,  while  the  eldest  son  may  be  in 
affluence,  has  been  followed  by  courts  of  equity  in  coun- 
tries where  that  rule  exists.  And  where  the  circumstances 
are  such  as  to  be  sufficient  to  create  an  equity,  a  court  of  eq- 
uity will  not  violate  or  disregard  a  rule  of  law,  since  it  has 
no  power  and  no  discretion  in  the  matter ;  but,  while  recog- 
nizing the  rule  of  law,  and  even  maintaining  it,  a  court  of 
equity  will,  in  a  proper  case,  find  a  way  to  avoid  or  obviate 
it.6  This  has  been  instanced  in  a  case  where  a  testator  in 

band  during  the  lifetime  of  the  wife  debarred,  at  law,  the  recovery 
of  a  judgment  against  him. 

»  Magniac  v.  Thomson,  15  How.  281,  14  L.  Ed.  696;  Mathews  v. 
Insurance  Co.,  75  Ala.  85. 

*  Hedges  v.  Dixon  Co.,  150  U.  B.  182,  192,  14  Sup.  Ct  71,  37  L. 
Ed.  1044. 

6  Lawson  v.  Jordan,  19  Ark.  305,  70  Am.  Dec.  596;  Hamilton 
Trust  Co.  v.-demes,  17  App.  Div.  152,  155,  45  N.  Y.  Supp.  141. 

«  Snell,  Eq.  (10th  Ed.)  p.  18,  where,  as  an  illustration,  it  is  also 
stated:  "For  example,  if  an  eldest  son  should  prevent  his  father 
from  executing  a  proposed  will  devising  one  estate  to  a  younger 
brother  by  promising  to  convey  such  estate  to  such  younger  broth- 
er, and  that  estate  should  accordingly  descend  at  law  to  the  eldest 
son  as  a  consequence  flowing  from  his  promise,  which  was  the 
cause,  a  court  of  equity  would  interpose,  and  say:  'True  it  is,  you 
(the  eldest  son)  have  the  estate  at  law;  in  other  words,  the  legal 
estate.  That  we  don't  deny  or  interfere  with.  But,  precisely  be- 
cause you  have  it,  you  will  make  a  convenient  trustee  of  it  for 
EATON,  EQ.— 4 


50  MAXIMS.  (Ch.  3 

advanced  years  induced  his  niece  to  reside  with  him  as  a 
housekeeper  and  nurse  on  the  verbal  representation  that  he 
had  provided  for  her  in  his  will,  which  he  had  in  fact  pre- 
pared and  executed.  After  his  death  it  appeared  that  the 
provision  had  been  revoked  by  a  codicil.  The  court  directed 
that  the  trusts  of  the  will  in  the  niece's  favor  should  be  per- 
formed, and  held  that  in  such  cases  a  representation  that 
property  is  given,  even  though  by  a  revocable  instrument, 
is  binding,  where  the  person  to  whom  the  representation  is 
made  has  acted  on  the  faith  of  it  to  his  or  her  detriment; 
and  that  it  is  the  law  of  the  court,  grounded  on  such  detri- 
ment, that  makes  it  binding.  Such  a  ruling,  it  will  be  ob- 
served, does  not  set  aside,  but  avoids,  the  law.  The  com- 
plete legal  grant  made  by  the  will  was  left  to  subsist  unaf- 
fected, but  to  subsist  subject  to  the  contract  in  favor  of  the 
niece,  on  the  ground  that  the  testator  had  already  during 
his  lifetime,  and  to  the  extent  of  that  contract,  fettered  his 
own  otherwise  free  power  of  devise.1  But  the  representa- 
tion must  result  in  a  contractual  obligation;  a  mere  repre- 
sentation of  an  intention  not  amounting  to  a  promise  is 
insufficient.* 

The  second  method  of  applying  the  maxim  has  been  stated 
as  follows :  Equity  is  regulated  by  the  analogy  of  legal  in- 
terests and  rights,  and  the  rules  of  the  law  affecting  the 
same,  in  regard  to  equitable  estates,  interests,  and  rights, 
where  any  such  analogy  clearly  subsists.'  Equity,  having 
created  equitable  estates  and  interests,  has  determined  that 
there  should  be  applied  thereto,  to  a  certain  extent,  the  rules 
pertaining  to  corresponding  legal  estates  and  interests.10 

your  younger  brother,  who,  In  our  opinion,  Is  equitably  entitled  to 
It,  because,  but  for  your  promise,  he  would  have  had  It.' " 

•  See  the  following  English  cases:     Loffus  v.  Maw,  3  GIff.  592; 
Coverdale  v.  Eastwood,  L.  R.  15  Eq.  121 ;  Coles  v.  Pllklngton,  L.  R. 
19  Eq.  174;   In  re  Applebee  11S91]  3  Ch.  Dlv.  422. 

•  Maddlson  v.  Alderson,  8  App.  Cas.  467;   Hammersley  v.  De  Blel 
(En p.  i  12  Clark  &  F.  45. 

•  Suell.  Eq.  14. 

»o  The  following  extract  from  a  decision  by  Sir  Joseph  Jekyll 
In  Cowper  v.  Cowper,  2  P.  Wms.  720,  clearly  elucidates  this  prin- 
ciple: "The  law  Is  clear,  and  courts  of  equity  ought  to  follow  It 
in  their  judgments  concerning  titles  to  equitable  estates;  other- 
wise, great  uncertainty  and  confusion  would  ensue.  And  though 


§    14)  EQUITY   FOLLOWS   THE   LAW.  51 

Thus  words  of  limitation  used  in  the  creation  of  executed 
trusts  will  be  given  the  same  construction  and  effect  as  if 
used  in  creating  legal  estates.11  And  the  rules  governing 
the  admissibility  and  weight  of  evidence  and  the  construction 
of  contracts  are  the  same  at  law  and  in  equity.12  It  may 
be  also  stated  generally  that  proceedings  in  equity  must  be 
brought  within  the  period  prescribed  by  statutes  of  limita- 

proceedings  In  equity  are  said  to  be  'secundum  dlscretionem  boni 
viri,'  yet  when  is  asked,  'Vlr  bonus  est  quis?'  the  answer  Is,  'Qui 
consulta  patrum,  qul  leges  juraque  servat.'  And  as  Is  said  In 
Book's  Case,  5  Coke,  99b,  that  discretion  Is  a  science  not  to  act 
arbitrarily  according  to  men's  wills  and  prhate  affections;  so  the 
discretion  which  is  executed  here  is  to  be  governed  by  the  rules  of 
law  and  equity,  which  are  not  to  oppose,  but  each  in  its  turn  to  be 
subservient  to,  the  other.  This  discretion  in  some  cases  follows  the 
law  implicitly;  in  others  assists  it,  and  advances  the  remedy;  In 
others  again,  it  relieves  against  the  abuse,  or  allays  the  rigour,  of 
It;  but  in  no  case  does  it  contradict  or  overturn  the  grounds  or 
principles  thereof,  as  has  been  sometimes  ignorantly  imputed  to 
this  court  That  is  a  discretionary  power,  which  this  nor  any  other 
court,  not  even  the  highest,  acting  in  a  judicial  capacity,  Is,  by  the 
constitution,  intrusted  with." 

11  Dibrell  v.  Carlisle,  48  Miss.  691. 

n  In  re  Terry  &  White's  Contract,  32  Ch.  Div.  21.  In  this  case 
Lord  Esher  said:  "I  doubt  myself  *  *  *  whether  there  are  any 
principles  of  law  which  were  differently  affirmed  in  the  old  court 
of  equity  and  the  old  courts  of  common  law.  These  courts  dealt 
with  the  same  matters  for  the  purpose  of  different  remedies,  and 
therefore  were  necessarily  looking  at  the  same  matters  from  dif- 
ferent points  of  view.  But  It  has  been  often  said  that  the  rules  of 
evidence  in  the  court  of  equity  were  different  from  those  in  the 
courts  of  common  law,  and  that  a  different  construction  was  put 
upon  the  same  instrument;  that  the  same  instruments  in  the  same 
words  would  be  construed  in  one  way  in  a  court  of  equity  and  in 
another  way  in  a  court  of  common  law;  and  it  has  been  said  that 
that  which  in  the  one  court  would  have  been  deemed  to  be  neither 
Immoral  or  drshonest  was  in  the  other  court  deemed  to  be  both  im- 
moral and  dishonest.  Ever  since  I  have  been  in  this  court  of  ap- 
peal I  have  been  trying  to  point  out,  not  the  differences,  but  the 
resemblances  and  the  identities,  between  law  and  equity;  and  I 
now  protest  against  each  and  every  one  of  those  alleged  doctrines. 
I  protest  most  strongly  that  evidence  was  always  the  same  ia  the 
court  of  equity  as  in  the  courts  of  common  law  as  to  its  effect  in 
finding  out  the  truth.  What  an  absurdity  it  would  be  if  the  same 
evidence  to  prove  a  given  fact  before  one  of  two  tribunals  should 
be  taken  to  prove  it,  and  before  the  other  tribunal  should  be  taken 
not  to  prove  itl  The  idea  seems  to  me  to  be  monstrous;  and,  as  to 


52  MAXIMS.  (Ch.  3 

tions  for  the  bringing  of  similar  legal  proceedings.1'  This 
rule  is  not  without  qualification.  A  court  of  equity,  in  the 
exercise  of  its  concurrent  jurisdiction,  will  never  either  ex- 
ceed or  abridge  the  limit  of  time  prescribed  at  law;  but  in 
the  exericse  of  its  exclusive  jurisdiction  it  will,  through  rea- 
sons of  its  own,  such  as  laches,  etc.,  abridge,  although  per- 
haps never  exceed,  the  limit  thus  prescribed.1* 


EQUITY  AIDS  THE  VIGILANT. 

15.  Equity  aids  the  vigilant,  not  the  indolent. 
(•'Vigilantibus  non  dormientibus  sequitas 
subvenit.") 

But  legal  disabilities,  such  as  infancy,  incom- 
petency,  and  absence  from  the  state,  excuse 
delay;  and  the  sovereign  power  is  not 
chargeable  with  laches  in  respect  to  public 
rights  and  interests. 

a  matter  being  called  Immoral  and  dishonest  In  one  court  and  moral 
and  honest  in  another,  if  the  law  were  so,  I  should  consider  it 
perfectly  hateful  that  a  man  should  be  branded  with  fraud  or 
with  dishonesty  according  to  the  court  in  which  his  adversary 
brought  the  suit.  It  seems  to  me  to  be  equally  absurd  and  ridicu- 
lous to  suppose  that  the  same  words,  in  the  same  contract,  should 
be  held  to  have  one  meaning  in  a  court  of  law,  and  another  in  a 
court  of  equity." 

i«  Boone  Co.  v.  Railroad  Co.,  139  TJ.  S.  693,  11  Sup.  Ct  687,  35 
L.  Ed.  319;  Bickel's  Appeal,  86  Pa,  204;  Hollingshead  v.  Webster, 
87  Ch.  Div.  659. 

i«  Snell,  Eq.  p.  20;  Fullwood  v.  Fullwood,  9  Cb.  Div.  176;  God- 
den  v.  Klmmell,  99  TJ.  S.  201,  25  L.  Ed.  431;  Manning  v.  Warren,  17 
111.  267;  Richardson  v.  Gregory,  126  111.  166,  18  N.  E.  777;  McCrea 
T.  Purmort,  16  Wend.  460,  30  Am.  Dec.  103.  The  existence  of  spe- 
cial circumstances  may  relieve  the  suitor  of  the  operation  of  the 
statute,  Preston  v.  Preston,  95  U.  S.  200,  24  L.  Ed.  494;  Meath  v. 
Phillips  Co.,  108  U.  S.  553,  2  Sup.  Ct.  869,  27  L.  Ed.  819;  Williamson 
v.  Monroe  (C.  C.)  101  Fed.  322;  Kirkpatrick  v.  Atkinson,  11  Rich. 
Eq.  (S.  C.)  27.  A  shorter  time  than  that  prescribed  by  the  statute 
may  suffice  to  prevent  the  court  giving  relief.  Kirksey  v.  Keith, 
11  Rich.  Kq.  (S.  C.)  33.  In  the  absence  of  fraud,  equity  adopts  the 
period  of  the  statute.  Church  T.  Winton,  196  Fu.  107,  46  All.  363. 


§   15)  EQUITY    AIDS    THE   VIGILANT.  53 

A  court  of  equity,  which  is  never  active  in  relief  against 
conscience  or  public  convenience,  has  always  refused  its 
aid  to  stale  demands,  where  the  party  has  slept  on  his  rights, 
and  acquiesced  for  a  great  length  of  time.1  A  court  of  eq- 
uity will  not  aid  the  slothful.  A  claim  worthy  of  support  in 
that  court  must  be  asserted  in  a  reasonable  time,  or  equita- 
ble relief  will  be  refused.  This  maxim  is  applied  to  pro- 
mote diligence  on  the  part  of  suitors,  to  discourage  laches 
by  making  it  a  bar  to  relief,  and  to  prevent  the  enforcement 
of  stale  demands  of  all  kinds,  wholly  independent  of  any 
statutory  periods  of  limitation.2  The  rule  is  peculiarly  appli- 
cable where  the  difficulty  of  doing  entire  justice  arises 
through  the  death  of  the  principal  participants  in  the  trans- 
action complained  of,  or  of  the  witness  or  witnesses,  or  by 
reason  of  the  original  transactions  having  become  so  ob- 
scured by  time  as  to  render  the  facts  impossible  of  ascertain- 
ment.8 

Effect  of  Statutes  of  Limitations. 

Courts  of  equity,  in  cases  of  concurrent  jurisdiction,  con- 
sider themselves  bound  by  the  statutes  of  limitation  which 
govern  courts  of  law  in  like  cases,  and  this  rather  in  obedi- 
ence to  the  statutes  than  by  analogy,  because,  where  the 
legal  remedy  is  barred,  the  spirit  of  the  statute  bars  the  equi- 


1  15.     i  Lord  Camden,  In  Smith  v.  Clay,  2  Ambl.  645,  cited  and 
approved  In  Oalhoun  v.  Millard,  121  N.  Y.  69,  81,  24  N.  E.  27,  8  L.  R. 
A.  248,  where  It  was  said:     "It  Is,  and  always  has  been,  the  prac- 
tice of  courts  of  equity  to  remain  Inactive  where  a  party  seeking 
their  interference  has  been  guilty  of  unreasonable  laches  In  mak- 
ing his  application."     Speidel  v.  Henrlci,  120  U.  S.  387,  7  Sup.  Ct 
610,  612,  30  L.  Ed.  718. 

2  Pom.  Eq.  Jur.  §  418.     Equity  can  only  help  the  diligent     The 
principle  laid  down  by  Lord  Camden  more  than  a  century  ago  is 
Btill  the  guide  of  the  court  in  cases  where  the  party  seeking  its  aid 
has  been  guilty  of  great  delay.     Norfolk  &  N.  B.  Hosiery  Co.  v. 
Arnold,  49  N.  J.  Eq.  397,  23  Atl.  514. 

s  Harrison  v.  Gibson,  23  Grat.  (Va.)  212;  Lawrence  v.  Rokes,  61 
Me.  38;  Hatcher  v.  Hall,  77  Va.  578;  Barnes  v.  Taylor,  27  N.  J.  Eq. 
259.  Laches  may  apply  where,  from  the  lapse  of  time,  the  death  of 
the  parties,  the  destruction  of  records,  and  the  loss  of  papers,  there 
can  be  no  longer  a  safe  determination  of  the  matters  in  controversy. 
Kelson's  Adm'r  v.  Kownslar's  Ex'r,  79  Va.  468;  Perkins  v.  Lane,  82 
Va.  59;  Mathiaa  v.  O'Neil,  94  Alo.  520,  6  S.  W.  253. 


54  MAXIMS.  (Ch.  3 

table  remedy  also.4  In  many  other  cases  they  act  upon  the 
analogy  of  the  like  limitation  at  law.  But  there  is  a  defense 
peculiar  to  courts  of  equity,  founded  on  lapse  of  time  and 
the  staleness  of  the  claim,  where  no  statute  of  limitation 
governs  the  case.8  In  such  cases  courts  of  equity  act  upon 
their  own  inherent  doctrine  of  discouraging,  for  the  peace  of 
society,  antiquated  demands,  and  refuse  to  interfere  where 
there  has  been  gross  laches  in  prosecuting  the  claim,  or 
long  acquiescence  in  the  assertion  of  adverse  rights.  Long 
acquiescence  by  parties  out  of  possession  of  real  property 
is  productive  of  much  hardship  and  injustice  to  others,  and 
cannot  be  excused  save  by  showing  some  actual  hindrance  or 
impediment,  caused  by  the  fraud  or  concealment  of  the  par- 
ties in  possession,  which  will  appeal  to  the  conscience  of  the 
chancellor.* 

What  Constitutes  Laches. 

What  delay  in  bringing  suit  will  constitute  such  laches  as 
will  bar  relief,  in  the  absence  of  the  defense  of  the  statute  of 
limitations,  depends  upon  the  facts  and  circumstances  of  each 
particular  case,  and  is  within  the  sound  discretion  of  the 
court  to  determine.7  Lapse  of  time  is  only  one  of  the  many 

«  Richardson  v.  Gregory,  126  111.  160,  18  N.  E.  777,  780,  citing 
Hancock  v.  Harper,  8«  111.  445;  Qunyle  v.  Guild.  91  111.  378;  Bon- 
ney  v.  Stoughton,  122  111.  541,  13  N.  E.  833;  Calboun  v.  Millard,  121 
N.  Y.  69,  81,  24  N.  B.  27,  8  L.  R.  A.  248;  Holmes  v.  Railroad  Co. 
(D.  C.)  93  Fed.  100. 

«  In  re  Neilley,  95  N.  Y.  382,  390;  Groenendyke  v.  Coffeen.  109 
111.  329;  Stout  v.  Seabrook's  Ex'rs,  30  N.  J.  Eq.  189,  190;  Bell  v. 
Hudson.  73  Gal.  285,  14  Pac.  791.  2  Am.  St.  Rep.  791.  In  McKnight 
v.  Taylor,  1  How.  168,  11  L.  Ed.  88,  the  court  said:  "We  do  not 
found  our  Judgment  on  the  presumption  of  payment,  for  it  is  not 
merely  on  presumption  of  payment,  or  in  analogy  to  the  statute 
of  limitations,  that  a  court  of  chancery  refuses  to  lend  Its  aid  to 
stale  demands.  There  must  be  conscience,  good  faith,  and  rea- 
sonable diligence  to  call  Into  action  the  powers  of  the  court." 

«  Badger  v.  Badger,  2  Wall.  94,  17  L.  Ed.  836;  Richards  v.  Mack- 
all,  124  U.  S.  183.  8  Sup.  Ct.  438,  31  L.  Ed.  396;  Speidel  v.  Henrici, 
120  U.  8.  877,  7  Sup.  Ct  610,  30  L.  Ed.  718;  Hayward  v.  Bank.  96 
U.  S.  617,  24  L.  Ed.  855;  Hammond  v.  Hopkins,  143  U.  S.  224,  12 
Sup.  Ct.  418,  36  L.  Ed.  134;  Castner  y.  Walrod,  83  111.  171,  25  Am. 
Rep.  369;  Catlin  v.  Green,  120  N.  Y.  441,  24  N.  E.  941;  Melma  v. 
Brewing  Co.,  93  WIs.  153,  60  N.  W.  518,  57  Am.  St.  Rep.  899. 

t  Gibson  T.  Herriott,  55  Ark.  85,  17  8.  W.  589,  29  Am.  St.  Rep.  17, 


§    15)  EQUITY   AIDS   THE   VIGILANT.  55 

circumstances  from  which  the  conclusion  of  laches  must  be 
drawn,  and  each  case  must  be  determined  in  the  light  of 
the  particular  facts  shown.*  And  while  the  principal  founda- 
tions of  the  doctrine  of  laches  are  lapse  of  time  and  acqui- 
escence, other  circumstances  will  be  taken  into  consider- 
ation. Thus  it  is  a  material  circumstance  that  the  claim 
was  not  made  until  after  the  death  of  those  who  could  have 
explained  the  transaction.9  It  has  been  held  that  a  change 
in  the  value  and  character  of  the  property  may  be  material.10 
And,  where  a  suit  was  brought  by  the  heirs  of  a  deceased 
partner  for  an  accounting,  it  was  held  that  a  delay  of  16 
years  constituted  laches,  and  rendered  the  claim  stale.11 
Where  the  parties  are  in  confidential  or  fiduciary  relation- 
ship with  each  other,  the  delay  may  not  be  so  material  as  in 

where  the  court  held  that  the  delay  of  a  party  holding  the  equitable 
title  to  land  In  standing  by  and  permitting  the  owner  of  the  legal 
title  to  expend  large  sums  In  Improving  and  developing  the  prop- 
erty until  it  has  largely  increased  in  value,  without  notice  of  his 
claim,  constitutes  such  laches  as  will  bar  relief.  See,  also,  Brown 
v.  Wilson,  21  Colo.  309,  40  Pac.  688,  52  Am.  St.  Rep.  288;  Bryan  v. 
Kales,  134  U.  S.  126,  135,  10  Sup.  Ct  435,  33  L.  Ed.  829;  Mc- 
Quiddy  v.  Ware,  20  Wall.  19,  22  L.  Ed.  311;  Carpenter  v.  Canal 
Co.,  35  Ohio  St.  307.  In  enforcing  purely  equitable  remedies,  de- 
pending on  general  equitable  principles,  unreasonable  and  inex- 
cusable delay  is  an  element  in  the  plaintiff's  case  which  a  court  of 
equity  always  takes  into  consideration  in  exercising  its  discretion 
to  grant  or  refuse  relief,  and  is  not  a  mere  collateral  incident. 
Calhoun  v.  Millard,  121  N.  Y.  69,  83,  24  N.  E.  27,  8  L.  R.  A.  248. 

s  Reynolds  v.  Sumner,  126  111.  58,  18  N.  E.  334,  9  Am.  St  Rep.  523, 
citing  Boone  v.  Chiles,  10  Pet.  177,  9  L.  Ed.  388;  Michoud  v.  Girod, 
4  How.  503,  11  L.  Ed.  1076;  Baker  v.  Read,  18  Beav.  398;  Prevost 
v.  Gratz,  6  Wheat  481,  5  L.  Ed.  311;  Paschall  v.  Hinderer,  28  Ohio 
St.  568,  580;  Brown  v.  County  of  Buena  Vista,  95  U.  S.  159,  24  L. 
Ed.  422. 

»  Bell  v.'  Hudson,  73  Cal.  285,  14  Pac.  791,  2  Am.  St.  Rep.  791; 
Mooers  v.  White,  6  Johns.  Ch.  (N.  Y.)  360;  Barnes  v.  Taylor,  27  N. 
J.  Eq.  259;  German- American  Seminary  v.  Keifer,  43  Mich,  111, 
4  N.  W.  636. 

10  Bliss  v.  Prichard,  67  Mo.  187;    Allen  v.  Allen,  47  Mich.  79,  10 
N.  W.  113;   Pratt  v.  Mining  Co.  (C.  C.)  24  Fed.  869;   Twin-Lick  Oil 
Co.  v.  Marbury,  91  U.  S.  587,  23  L.  Ed.  328. 

11  Groenendyke  v.  Coffeen,  109  111.  339.    And  see  Codman  v.  Rog- 
ers, 10  Pick.  119;  Harris  v.  Hillegass,  66  Cal.  79,  4  Pac.  987;  Curtis 
V.  Lakln,  94  Fed.  251,  36  C.  C.  A.  222. 


56  MAXIMS.  (Ch.  3 

other  cases;  and,  where  the  parties  are  members  of  the 
same  family,  the  delay  is  not  so  prejudicial.1*  In  cases 
where  it  is  sought  to  impeach  a  transaction  because  of  fraud, 
lapse  of  time  is  a  question  of  much  importance,  owing  to  the 
fact  that  much  evidence  originally  available  and  necessary 
to  a  full  knowledge  of  the  equities  of  the  transaction  may  be 
lost.1*  But  the  lapse  of  time  in  such  cases  begins  to  run 
only  from  the  time  of  the  discovery  of  the  fraud.14  This  is 
so  since  where  there  has  been  no  knowledge  there  can  be  no 
acquiescence  or  laches.  The  rule  may  be  stated  thus:  In 
equity  cases  time  does  not  commence  to  run  unless  there  is 
full  information  and  knowledge  by  a  party  of  his  righ'ts  and 
the  injury  done,  or  he  has  such  notice  thereof  that  he  ought 
to  have  made  inquiry,  or  where  there  is  undue  influence,  and 
the  disability  is  removed,  or  where  he  himself  possesses  the 
means  of  knowledge.1*  To  constitute  laches,  there  must 
have  been  actual  or  imputable  knowledge  of  the  facts  which 
should  have  prompted  a  choice  either  to  diligently  seek 
relief,  or  thereafter  to  be  content  with  such  remedies  as  a 
court  of  law  might  afford ;  or,  if  there  was  actual  ignorance, 
that  must  have  been  without  just  excuse.1* 

it  Note  4  to  Crowe  v.  Ballard,  1  Ves.  Jr.  (Stunner's  Ed.)  215,  cit- 
ing Beaumont  v.  Eoultbee,  5  Ves.  492,  494;  Hardwlcke  v.  Vernon, 
14  Ves.  511;  Macdonald  v.  Macdonald,  1  Bligb,  336;  Lewes  v.  Mor- 
gan, 5  Price,  42;  Berkmeyer  v.  Killerman,  32  Ohio  St.  257,  30  Am. 
Rep.  577. 

is  I'revost  v.  Gratz,  6  Wheat  481,  498,  5  L.  Ed.  311;  Thomas  v. 
Van  Meter,  164  111.  304,  45  N.  B.  405. 

i«  Longworth  v.  Hunt,  11  Ohio  St.  194;  Meader  v.  Norton,  11 
Wall.  442,  20  L.  Ed.  184;  Charter  v.  Trevelyan,  11  Clark  &  F.  714, 
740, — where  relief  was  granted  when  the  fraud  was  discovered  after 
a  l:i]>se  of  37  years. 

i«l  Sugd.  Vend.  (8th  Am.  Ed..  Perkln's  Notes)  387.  And  see 
Morouy  v.  O'Dea,  1  Ball  &  B.  118;  Ferris  v.  Henderson,  12  Pa.  49, 
61  Am.  Dec.  580;  Hellman  v.  Davis,  24  Neb.  793,  40  N.  W.  309; 
Parker  v.  Kuhn,  21  Neb.  413,  32  N.  W.  74.  A  person  is  not  guilty 
of  laches,  so  as  to  deprive  him  of  relief,  by  waiting  three  years 
after  discovery  of  a  mistake  In  an  agreement  before  he  begins  an 
action  to  correct  the  same.  Thompson  v.  Marshall,  36  Ala.  504,  76 
Am.  Dec.  328. 

»•  Bausman  v.  Kelley.  38  Minn.  197.  36  N.  W.  333,  8  Am.  St  Rep. 
661,  606,  citing  Stocking  v.  Hanson.  35  Minn.  207.  28  N.  W.  607. 


§    15)  EQUITY    AIDS    THE    VIGILANT.  57 

When  Laches  Not  Imputed. 

Where  there  has  been  a  reasonable  excuse  for  the  delay, 
equity  will  not  refuse  its  aid.  As  where,  because  of  the 
obscurity  of  the  transaction,  a  plaintiff  was  unable  to  obtain 
full  information  in  regard  to  his  rights,  lapse  of  time  may  be 
excused.  As  long  as  a  person  remains  under  the  duress  or 
undue  influences  which  induced  him  to  execute  the  contract 
or  perform  the  act  from  which  he  seeks  relief,  he  will  not  be 
deemed  to  have  acquiesced.  It  is  only  when  the  distressed 
party  is  relieved  from  the  oppression  which  controlled  in  the 
first  instance  that  he  can  be  expected  to  act.17  Since  a 
person  non  sui  juris  cannot  act  in  his  own  behalf,  neither  an 
infant,  a  married  woman  under  the  disability  of  coverture, 
nor  an  insane  person  is  chargeable  with  laches.18  And  a 
suit  by  the  government  to  enforce  a  public  right  or  assert 
a  public  interest  is  not  barred  by  the  laches  of  its  officers, 
however  gross.1* 

»T  Note  4  to  Crowe  v.  Ballard,  1  Ves.  Jr.  (Sumner's  Ed.)  221,  cit- 
ing Puvcell  v.  McNamara,  14  Ves.  10R,  121;  Gowland  v.  De  Faria, 

17  Ves.  25;   Aylward  v.  Kearney,  2  Ball  &  B.  477;  Wood  v.  Downes, 

18  Ves.  128.    It  was  held  in  Roberts  v.  Tunstall,  4  Hare,  257,  that 
the  poverty  of  the  cestuis  que  trustent  was  not  sufficient  to  excuse 
delay  in  prosecuting  his  claim  to  relief. 

is  McMillan  v.  Rushing,  80  Ala,  402;  Wha?ey  v.  Eliot's  Heirs,  1 
A.  K.  Marsh.  (Ky.)  345,  10  Am.  Dec.  737;  Blandford  v.  Marlbor- 
ough,  2  Atk.  545.  As  to  married  women  under  coverture,  see  Baker 
v.  Morris'  Adm'r,  10  Leigh  (Va.)  284;  Wilson  v.  McCarty,  55  Md. 
277;  Harrison  v.  Gibson,  23  Grat.  (Va.)  212;  Etting  v.  Marx's 
Ex'r  (C.  C.)  4  Hughes,  312,  4  Fed.  673;  Bedilian  v.  Sea  ton,  3  Wall. 
Jr.  279,  287,  Fed.  Cas.  No.  1,218.  As  to  insane  persons,  see  Craig  v. 
Leiper,  2  Yerg.  (Tenn.)  193,  24  Am.  Dec.  479;  Dungan  v.  Insurance 
Co.,  46  Md.  409,  499. 

i»  U.  S.  v.  Insley,  130  U.  S.  263,  9  Sup.  Ct.  485,  32  L.  Ed.  968;  TJ. 
S.  v.  Beebe,  127  U.  S.  338,  8  Sup.  Ct  1083,  32  L.  Ed.  121;  Steele  v. 
U.  S.,  113  U.  S.  128,  5  Sup.  Ct.  396,  28  L.  Ed.  952.  And  see  U.  S.  v. 
City  of  Alexandria  (C.  C.)  4  Hughes,  545,  19  Fed.  609;  22  Meyer, 
Fed.  Dec.  §  327,  where  the  court  said:  "The  general  principle  is 
that  laches  are  not  imputable  to  the  government.  The  utmost  vig- 
ilance would  not  save  the  public  from  the  most  serious  losses  if 
the  doctrine  of  laches  could  be  applied  to  its  transactions."  And 
see,  also,  Haehnlen  v.  Com.,  13  Pa.  617,  53  Am.  Dec.  502,  and  note; 
U.  S.  v.  Williams,  4  McLean,  567,  Fed.  Cas.  No.  16,720;  U.  S.  v. 
Kirkpatrick,  9  Wheat.  720,  6  L.  Ed.  199;  U.  S.  v.  Van  Zandt,  11 
Wheat.  184,  6  L.  Ed.  448;  U.  S.  v.  Barrowcliff,  3  Ben.  519,  Fed.  Cas. 
No.  14.528. 


58  MAXIMS.  (Ch.  3 

EQUALITY  IS  EQUITY. 

16.     Equality  is  equity. 

This  maxim  is  sometimes  expressed  thus:  "Equity  de- 
lightcth  in  equality."  It  is  of  wide  and  general  application, 
and  is  the  source  of  many  important  doctrines  of  equity  ju- 
risprudence. By  its  application  courts  of  equity  will  decree  a 
pro  rata  distribution  of  the  assets  of  a  debtor  among  his 
creditors,  without  regard  to  legal  priorities  or  preferences 
obtained  by  such  creditors,  if  such  assets  are  not  sufficient 
to  discharge  all  claims  against  the  debtor,  or  the  debtor  is 
insolvent.  This  is  in  contravention  of  the  ordinary  legal  rule 
that  the  creditor  who  first  obtains  judgment  and  execution 
against  an  insolvent  debtor  is  entitled  to  full  satisfaction  of 
his  judgment,  although  there  is  not  sufficient  property  be- 
longing to  the  debtor  to  satisfy  the  claims  of  all  his  credit- 
ors.1 Upon  this  maxim  are  built  all  our  modern  bankruptcy 
laws,  for  the  main  object  gained  by  such  laws  is  the  fair  and 
equitable  distribution  of  the  assets  of  an  insolvent  debtor. 
Receiverships  are  subjected  to  this  principle,  and  the  receiv- 
er, as  an  officer  of  a  court  of  equity,  will  generally  be  requir- 
ed to  distribute  the  funds  in  his  hands  pro  rata  among  the 
just  claimants  thereto.2  And,  where  the  aid  of  equity  has 
been  once  invoked  to  settle  the  affairs  of  an  insolvent  debtor, 
a  creditor  will  not  usually  be  permitted  to  obtain  a  prefer- 
ence, even  in  a  court  of  law.' 

S  16.  i  The  right  to  prefer  creditors  Is  an  Infirmity  still  remaining 
In  the  body  of  the  common  law.  It  Is  contrary  to  the  letter  and 
spirit  of  the  maxim  that  equality  is  equity.  It  Is  condemned  In  all 
our  state  Insolvent  laws.  The  federal  bankrupt  laws  have  never 
omitted  to  annex  penalties  to  Its  exercise.  Butler  Paper  Co.  v. 
Bobbins,  151  111.  632,  38  N.  E.  153. 

2  International  Bank  v.  Sherman,  101  U.  S.  403,  25  L.  Ed.  866; 
Burnham  v.  Barth,  89  Wis.  362,  62  N.  W.  96;  Blum  v.  Van  Vechten. 
92  Wis.  378.  66  N.  W.  507;  Shepherd  v.  Guernsey,  9  Paige  (N.  Y.) 
857.— where  it  was  held  that  the  principle  that  equality  among 
persons  having  a  common  right  to  payment  out  of  a  fund  provided 
for  the  benefit  of  all  is  equity  will  not  be  departed  from  unless 
thero  Is  n  clear  Intent  to  that  effect  expressed  in  a  statute,  or  an 
assignment  based  on  it. 

•  In  re  Thompson,  10  App.  Div.  40.  41  N.  Y.  Supp.  740;    Rose- 


§    16)  EQUALITY   IS    EQUITY.  59 

The  maxim  applies  with  equal  force  to  a  case  where  a  sin- 
gle claim  exists  against  several  persons.  The  law  permits  the 
claimant  to  enforce  his  claim  against  any  one  of  such  persons, 
and  did  not,  in  former  times,  give  the  debtor  who  paid  the 
claim  the  right  of  enforcing  contribution  from  the  others 
jointly  liable,  so  that  in  the  end  the  burden  might  be  distrib- 
uted among  all  in  just  proportions.  The  modern  law  provides 
such  right  of  reimbursement,  but  it  was  derived  solely  from 
equity  jurisprudence.  It  was  from  the  hardship  imposed  by 
this  legal  rule  that  the  equitable  doctrine  of  contribution 
arose,  and  courts  of  equity  applied  the  principle  that,  when- 
ever a  common  liability  rests  upon  several  persons  in  favor 
of  a  single  claimant,  equity  will  enforce  such  liability  upon  all 
such  persons  of  the  same  class.4  As  an  example  of  the  ap- 
plication of  this  maxim,  a  person,  being  one  of  a  number 
of  sureties,  who  pays  the  debt  of  the  principal  debtor,  may 
secure  from  his  co-sureties  a  pro  rata  contribution.6  Anoth- 
er application  of  this  maxim  is  in  the  case  of  joint  purchases 
and  mortgages.  The  common-law  rule  is  in  favor  of  con- 
stituting the  ownership  a  joint  tenancy,  which  will  pass  to 
the  survivor  on  the  death  of  the  co-owner.  Equity  does 
not  favor  joint  tenancy,  and,  whenever  circumstances  arise 
which  are  available,  a  court  of  equity  will  prevent  the  inci- 
dent of  survivorship.8  If  the  purchase  price  was  paid  by  the 

boom  v.  Whittaker,  132  111.  81,  23  N.  E.  339;  Russell  v.  Bank,  139 
111.  549,  29  N.  E.  37,  17  L.  R.  A.  345;  Breed  v.  Investment  Co.  (C. 
C.)  71  Fed.  903. 

*  Anniston  Loan  &  Trust  Co.  v.  Ward,  108  Ala.  85,  18  South. 
937;  Trustees  of  Internal  Improvement  Fund  v.  Greenough,  105  U. 
S.  527,  26  L.  Ed.  1157;  Central  Railroad  &  Banking  Co.  of  Georgia 
v.  Pettus,  113  U.  S.  116,  5  Sup.  Ct  387,  28  L.  Ed.  915. 

5  Hawker  v.  Moore,  40  W.  Va.  49,  20  S.  E.  848;  Norton  v.  Coons, 
6  N.  Y.  33,— where  the  court  said:  "The  doctrine  of  contribution 
was  first  established  and  enforced  in  equity.  It  rested  upon  and 
resulted  from  the  maxim  that  'equality  is  equity.'  This  principle 
has  been  so  long  established  that  persons  becoming  bound  as  sure- 
ties for  a  principal  debtor  are  regarded  as  acting  under  a  contract 
Implied  from  the  settled  rules  which  regulate  their  liability  to  each 
other,"— citing  Craythorne  v.  Swinburne,  14  Ves.  169.  And  see 
Wells  v.  Miller,  66  N.  Y.  255. 

e  In  Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  290,  1  White  &  T.  Lead. 
Cas.  Eq.  215,  it  was  held  that,  where  two  or  more  purchase  lands, 
and  advance  the  purchase  money  in  unequal  shares,  and  this  ap- 


60  MAXIMS.  (Ch.  3 

co-owners  in  equal  proportions,  even  in  equity,  the  owner- 
ship was  a  joint  tenancy,  and  the  common-law  rule  of  surviv- 
orship was  applied.  Where  a  mortgage  was  taken  by  two 
or  more  persons  for  money  loaned  in  either  equal  or  un- 
equal proportions,  their  estate,  at  law,  is  joint,  and  on  the 
death  of  one  the  security  would  belong  to  the  survivor. 
But  in  equity  the  interest  of  the  mortgagees  is  in  common, 
and  on  the  death  of  one  the  survivor  holds  for  the  benefit  of 
the  personal  representatives  of  the  deceased  mortgagee.7 
The  statutes  of  the  several  states  have  abrogated  the  ne- 
cessity of  applying  this  maxim  to  estates  owned  by  two  or 
more.  It  is  now  provided,  generally,  by  statute,  throughout 
all  the  states,  that  a  conveyance  of  land  to  two  or  more  gran- 
tees shall,  unless  a  contrary  intention  is  clearly  expressed, 
create  an  ownership  in  common,  and  not  a  joint  tenancy. 

At  common  law,  where  two  or  more  persons  bind  them- 
selves to  pay  a  sum  of  money,  or  to  perform  any  other  act, 
the  obligation  and  liability  are  joint;  and  in  case  of  the 
death  of  one  of  the  obligors  his  obligation  ceases,  and  his' 
estate  cannot  be  subjected  to  the  obligation,  but  the  survivor 
must  bear  the  entire  burden.8  But  in  equity  the  rule  is  dif- 
ferent. Upon  the  death  of  one  of  the  obligors  the  liability 
does  not  remain  upon  the  survivor  alone.  If  the  survivor  is 
insolvent,  or  if  the  creditor  has  exhausted  his  legal  remedy 
against  the  survivor,  a  suit  in  equity  may  be  maintained 
against  the  personal  representatives  of  the  deceased  debtor 
to  secure  payment  out  of  his  estate.*  In  England,  and  in 

pears  on  the  deed  itself,  the  mere  circumstance  of  the  Inequality 
of  the  sums  advanced  makes  them  In  the  nature  of  partners;  and, 
however  the  legal  estate  may  survive,  yet  the  survivor  will,  in  eq- 
uity, be  considered  as  a  trustee  for  the  other,  in  proportion  to  the 
Bum  advanced  by  him,  and,  of  course,  a  trustee  also  for  himself  in 
proportion  to  his  own  original  share. 

T  Appleton  v.  Boyd,  7  Mass.  131,  134;  Goodwin  v.  Richardson,  11 
Mass.  469;  Kinsley  v.  Abbott,  19  Me.  430,  434. 

•  Cairns  v.  O'Bleness,  40  Wis.  469;    Jones  v.  Keep's  Estate,  23 
Wis.  45;   Morehouse  v.  Ballou,  16  Barb.  (N.  Y.)  289. 

•  Voorhls  y.  Chllds'  Ex'rs,  17  N.  Y.  354;    Pope  v.  Cole,  55  N.  Y. 
124,  14  Am.   Rep.   198;    Ilichter  v.  Poppenhausen,  42  N.   Y.   373; 
Harbeck  v.  Pupin,  123  N.  Y.  115.  25  N.  B.  311;    Hotopp  v.  Huber. 
160  N.  Y.  524,  532,  55  N.  E.  206;  Barlow  v.  Scott's  Adm'rs,  12  Iowa, 


§    17;  EQUAL   EQUITIES,    THE    LAW   MUST   PREVAIL.  61 

some  of  the  states,  the  creditor  is  permitted  to  sue  the  per- 
sonal representatives  of  the  deceased  debtor,  without  even 
attempting  to  exhaust  legal  remedies  against  the  survivor.10 
But  the  rule  in  equity  as  above  stated  is  subject  to  this  ex- 
ception :  If  the  joint  obligor  who  died  be  a  surety,  not  lia- 
ble for  the  debt  irrespective  of  the  joint  obligation,  his  estate 
is  absolutely  discharged,  both  at  law  and  in  equity ;  the  sur- 
vivor only  being  liable.  In  such  case,  where  the  surety  owed 
no  debt  outside  and  irrespective  of  the  joint  obligation,  the 
contract  is  the  measure  and  the  limit  of  his  obligation.  He 
signs  a  joint  contract,  and  incurs  a  joint  liability,  and  no  oth- 
er. Dying  prior  to  his  co-maker,  the  entire  liability  attaches 
to  the  survivor.11 

There  are  many  other  examples  of  the  application  of  this 
maxim.  It  will  not  be  necessary  to  specify  more  than  those 
already  mentioned.  In  the  following  chapters  of  this  work 
many  doctrines  will  be  treated  and  principles  discussed 
which  are  the  result  of  the  operation  of  this  maxim  in  the 
administration  of  equitable  remedies. 


EQUAL  EQUITIES,  THE  LAW  MUST  PBEVAIL. 

17.  Where  there  is  equal  equity  the  law  must  pre- 
vail. In  other  words,  if  the  defendant  has 
a  claim  to  the  protection  of  equity  equal  to 
the  claim  of  the  plaintiff  for  its  assistance, 
equity  will  not  interpose,  but  will  leave  the 
matter  as  it  stands. 

It  is  by  an  application  of  this  maxim  that  a  court  of  equity 
will  refuse  to  interfere  against  a  bona  fide  purchaser  of  the 

63;   May  v.  Hanson,  6  Cal.  642.    But  see  Bostwlck  v.  McEvoy,  62 
Cal.  496. 

10  Wilkinson  v.  Henderson,  1  Mylne  &  K.  582;    Braithwaite  v. 
Britain,  1  Keen,  219;   De  Vaynes  v.  Ix7oble,  2  Russ.  &  M.  495;   Free- 
man v.  Stewart,  41  Miss.  138;   Braxton  v.  State,  25  Ind.  82;   Eaton 
v.  Burns,  31  Ind.  390;    Myers  v.  State,  47  Ind.  293,  297;    Voris  v. 
State,  Id.  345,  349,  350;    Bostwick  v.  McEvoy,  62  Cal.  496. 

11  Getty  v.  Binsse,  49  N.  Y.  385,  10  Am.  Rep.  379;  Wood  v.  Fisk, 
63  N.  Y.  245,  20  Am.  Rep.  528. 


62  MAXIMS.  (Ch.  3 

legal  estate  for  a  valuable  consideration  without  notice  of 
the  adverse  title,  if  the  purchaser  is  himself  in  possession,  or 
has  purchased  from  an  apparent  owner  in  possession,  pro- 
vided he  avail  himself  of  the  defense  at  the  proper  time,  and 
in  the  proper  mode.  If  the  bona  fide  purchaser  secures  a 
legal  title  in  addition  to  his  equitable  title,  even  after  no- 
tice of  the  adverse  equitable  title,  a  court  of  equity  will  not 
deprive  him  of  his  advantage,  and  his  legal  title  will  pre- 
vail.1 This  is  apparent,  since,  the  equities  of  the  parties  be- 
ing equal,  and  the  bona  fide  purchaser  having  also  a  legal 
title,  the  refusal  of  a  court  of  equity  to  interfere  will  enable 
him  to  assert  his  legal  title  in  a  court  of  law,  where  his  ad- 
versary will  not  be  able  to  set  up  his  equitable  title.  And, 
according  to  the  above  maxim,  a  purchaser  for  a  valuable 
consideration,  without  notice  of  a  prior  equitable  right,  ob- 
taining the  legal  estate  at  the  time  of  his  purchase,  is  enti- 
tled to  priority  in  equity,  as  well  as  at  law.2 


EQUAL  EQUITIES,  FIRST  IN  ORDER  OP  TIME  MUST 

PREVAIL. 

18.  Where  there  are  equal  equities,  the  first  in 
order  of  time  shall  prevail.  ("Qui  prior  est 
tempore  potior  est  jure.")  Another,  and 
more  correct,  form  of  stating  the  rule  is: 
As  between  persons  having  only  equitable 
interests,  if  their  interests  are  in  all  other 
respects  equal,  priority  in  time  gives  the 
better  equity.1 

f  17.  »  Taylor  v.  Russell  [1892]  App.  Cas.  244;  Black  wood  y. 
Bank,  L.  R.  5  P.  O.  92,  111;  Crump  v.  Black,  6  Ired.  Eq.  (N.  O.) 
321,  51  Am.  Dec.  422;  Hoult  v.  Donahue,  21  W.  Va.  294,  300;  Car- 
lisle v.  Jumper,  81  Ky.  282;  McNary  v.  Southworth,  58  I1L  473; 
Carroll  v.  Johnston,  55  N.  C.  120. 

2  Basset  v.  Nosworthy,  2  White  &  T.  Lead.  Cas.  Eq.  p.  14,  note, 
citing  Pitcher  v.  Rawllns,  7  Ch.  App.  259. 

8  IS.  i  In  the  case  of  Rice  v.  Rice,  2  Drew.  73,  an  able  equity 
Judge,  In  discussing  this  maxim,  said;  "What  Is  the  rule  of  a  court 
of  equity  for  determining  the  preferences  as  between  persons  hav- 
ing adverse  equitable  Interests?  The  rule  Is  sometimes  expressed  in 


§   18)  EQUAL    EQUITIES,  FIRST  MUST   PREVAIL.  63 

The  true  meaning  of  the  rule  is  that  in  a  contest  between 
persons  having  only  equitable  interests  priority  of  time  is  the 
ground  of  preference  last  resorted  to ;  that  is,  a  court  of 
equity  will  not  prefer  the  one  to  the  other,  on  the  mere 
ground  of  priority  of  time,  until  it  finds,  upon  an  examina- 
tion of  their  relative  merits,  that  there  is  no  other  sufficient 
ground  of  preference  between  them, — or,  in  other  words, 
that  their  equities  are  in  all  respects  equal ;  and  that,  if  the 
one  has  on  other  grounds  a  better  equity  than  the  other, 
priority  of  time  is  immaterial.2  When  conflicting  claims  and 

this  form,  as  between  persons  having  only  equitable  interests: 
'Qui  prior  est  tempore,  potior  est  jure.'  This  is  an  incorrect  state- 
ment of  the  rule,  for  that  proposition  is  far  from  being  invariably 
true.  In  fact,  not  only  is  it  not  universally  true  as  between  per- 
sons having  only  equitable  interests,  but  it  is  not  universally  true 
even  where  their  equitable  interests  are  of  precisely  the  same  nature, 
and  in  that  respect  precisely  equal, — as  in  the  common  case  of  two 
successive  assignments  for  a  valuable  consideration  of  a  rever- 
sionary interest  in  the  names  of  trustees,  where  the  second  as- 
signee has  given  notice  to  the  trustees,  and  the  first  has  omitted  it. 
Another  form  of  stating  the  rule  is  this:  As  between  persons  hav- 
ing only  equitable  interests,  if  their  equities  are  equal,  'qui  prior 
est  tempore,  potior  est  jure.'  This  form  of  stating  the  rule  Is  not 
so  obviously  incorrect  as  the  former.  And  yet  even  this  enunci- 
ation of  the  rule,  when  accurately  considered,  seems  to  me  to  in- 
volve a  contradiction;  for  when  we  talk  of  two  persons  having 
equal  or  unequal  equities,  in  what  sense  do  we  use  the  term  'eq- 
uity.' For  example,  where  we  say  that  A.  has  a  better  equity  than 
B.,  what  is  meant  by  that?  It  means  only  that,  according  to  those 
principles  of  right  and  justice  which  a  court  of  equity  recognizes 
and  acts  upon,  it  prefers  A.  to  B.,  and  will  Interfere  to  enforce  the 
rights  of  A.  as  against  B.;  and  therefore  it  Is  impossible,  strictly 
speaking,  that  two  persons  should  have  equal  equities,  except  in  a 
case  in  which  a  court  of  equity  would  altogether  refuse  to  lend  its 
assistance  to  either  party  as  against  the  other.  If  the  court  will 
interfere  to-  enforce  the  right  of  one  against  the  other  on  any 
ground  whatever,— say  on  the  ground  of  priority  of  time,— how  can 
It  be  said  that  the  equities  of  the  two  are  equal?  i.  e.,  in  other 
words,  how  can  it  be  said  that  the  one  has  no  better  right  to  call 
for  the  interference  of  a  court  of  equity  than  the  other?  To  lay 
down  the  rule  with  perfect  accuracy,  I  think  it  should  be  stated 
in  some  such  form  as  this:  As  between  persons  having  only  equi- 
table interests,  if  their  interests  are  in  all  other  respects  equal, 
priority  in  time  gives  the  better  equity." 

2  Rice  v.  Rice,  2  Drew.  73.  In  this  case  a  grantor  claimed  a  ven- 
dor's lien  for  purchase  money  on  lauds,  in  the  conveyance  of  which 


64  MAXIMS.  (Ch.  3 

interests  respecting  the  same  subject-matter  are  equitable, 
and  neither  is  accompanied  by  the  legal  estate,  and  neither 
possesses  any  special  features  which  in  equity  would  give  it 
a  preference  over  the  others  independent  of  the  order  of 
time,  the  maxim  applies,  and  priority  of  claim  is  determined 
by  priority  of  time.8  As  between  unrecorded  deeds  and 
mortgages,  the  grantees  and  mortgagees  take  according  to 
the  dates  of  their  securities ;  *  but,  as  against  a  voluntary 
conveyance,  a  subsequent  purchaser  for  value,  without  no- 
tice, has  the  superior  equity,  and  is  entitled  to  priority.8 
Upon  this  maxim  are  based  the  equitable  doctrines  of  prior- 
ities and  notice,  and  the  rights  of  bona  fide  purchasers  for  a 
valuable  consideration. 

there  was  an  acknowledgment  of  the  receipt  by  him  of  the  con- 
sideration, against  the  lien  of  a  subsequent  equitable  mortgagee 
who  loaned  money  to  the  grantee  on  the  deposit  of  title  deeds  as 
security.  The  grantor  claimed  that  his  lien  was  prior  in  point  of 
time,  but  the  court  held  that  the  equitable  mortgagee's  equity  was, 
In  other  respects,  superior,  on  account  of  his  being  misled  by  the 
acknowledgment  In  the  deed  of  the  receipt  of  the  consideration, 
and  hence  the  rule  as  to  priority  of  time  did  not  apply.  See,  also, 
Spencer  v.  Clarke,  9  Ch.  Div.  137;  Newton  v.  Xewton,  6  L.  R.  Eq. 
135,  140,  141;  Berry  v.  Insurance  Co.,  2  Johns.  Ch.  (N.  T.)  603; 
Muir  v.  Schenck,  8  Hill  (N.  Y.)  228,  38  Am.  Dec.  633  (in  this  case 
two  assignments  of  the  same  claim  were  made  by  a  person  to  dif- 
ferent assignees,  and  it  was  held  that  the  assignment  first  in  point 
of  time  would  be  protected  as  between  the  assignees,  though  notice 
had  not  been  given  to  the  subsequent  assignee  or  to  the  debtor; 
but,  if  the  debtor  pays  the  subsequent  assignee  without  notice  of 
the  first  assignment,  he  will  be  protected,  and  the  first  assignee 
cannot  recover  from  him);  Maguire  v.  Heraty,  163  Pa.  381,  30  Atl. 
151;  Neslln  v.  Wells,  104  U.  8.  428,  26  L.  Ed.  802;  Hume  v.  Dixon; 
87  Ohio  St  66. 

«  1  Pom.  Eq.  Jur.  (  415,  citing  Brace  v.  Duchess  of  Marlborough, 
2  P.  Win.  491;  Loveridge  v.  Cooper,  3  Russ.  30;  Rowan  v.  Bank, 
45  Vt  303;  Edmondson  v.  Hays,  1  Tenn.  509. 

*  Berry  v.  Insurance  Co.,  2  Johns.  Ch.  (N.  Y.)  603;  Grlmstone  v. 
Carter,  3  Paige  (N.  Y.)  421,  24  Am.  Dec.  230;  Ingram  v.  Morgan,  4 
Humph.  (Tenn.)  66,  40  Am.  Dec.  626;  Heyder  v.  Association,  42  N. 
J.  Eq.  403,  407,  408,  8  Atl.  810,  59  Am.  Rep.  49. 

»  Robinson  v.  Cathcart,  2  Cranch,  C.  C.  590,  Fed.  Gas.  No.  11,946. 
To  illustrate  an  application  of  this  maxim,  the  following  language 
of  an  able  equity  Judge  may  be  quoted  (Phillips  v.  Phillips,  4  De 
Gex,  F.  &  J.  208,  215,— Lord  Westbury):  "I  take  It  to  be  a  clear 
proposition  that  every  conveyance  of  an  equitable  Interest  la  an  in- 


§    J9)  HE    WHO    SEEKS    EQUITY    MUST    DO   EQUITY.  65 


HE  WHO  SEEKS  EQUITY  MUST  DO  EQUITY. 

19.  He  who  seeks  equity  must  do  equity.  A 
court  of  equity  giving  the  plaintiff  the  re- 
lief to  which  he  is  entitled  will  do  so  only 
upon  the  terms  of  his  submitting  to  give 
the  de  endant  such  corresponding  rights,  if 
any,  as  he  may  also  be  entitled  to  in  re- 
spect to  the  same  subject-matter.1 

This  maxim  and  the  maxims,  "He  who  comes  into  equitj 
must  come  with  clean  hands,"  and  "Equity  aids  the  vigilant," 
illustrate  the  distinctive  and  governing  principle  of  equity 
that  nothing  can  call  forth  a  court  of  equity  into  activity 
but  conscience,  good  faith,  and  personal  diligence.2  Within 
the  restrictions  above  prescribed,  the  maxim  is  of  univer- 
sal application,  and  governs  courts  of  equity  in  administer- 
ing all  kinds  of  equitable  relief,  whenever  necessary  to  do 
complete  justice  to  all  parties  to  a  controversy.  The  true 
meaning  of  the  maxim  is  that,  to  entitle  a  plaintiff  to  the 
aid  of  a  court  of  equity,  he  must  secure  to  the  defendant  the 

nocent  conveyance;  that  Is  to  say,  the  grant  of  a  person  entitled 
merely  in  equity  passes  only  that  which  he  is  Justly  entitled  to, 
and  no  more.  If,  therefore,  a  person  seised  of  an  equitable  estate 
(the  legal  estate  being  outstanding)  makes  an  assurance  by  way  of 
mortgage,  or  grants  an  annuity,  and  afterwards  conveys  the  whole 
estate  to  a  purchaser,  he  can  grant  to  the  purchaser  that  which  he 
has,  viz.  the  estate  subject  to  the  mortgage  or  annuity,  and  no 
more.  The  subsequent  grantee  takes  only  that  which  is  left  in  the 
grantor.  Hence  grantees  and  incumbrancers  claiming  in  equity 
take  and  are  ranked  according  to  the  dates  of  their  securities,  and 
the  maxim  ap'plies,  'Qui  prior  est  tempore,  potior  est  Jure.'  The 
first  grantee  is  potior;  that  is,  potentior.  He  has  a  better  and  su- 
perior, because  a  prior,  equity.  The  first  grantee  has  a  right  to  be 
paid  first,  and  it  is  quite  immaterial  whether  the  subsequent  incum- 
brancers. at  the  time  when  they  took  their  securities  and  paid  their 
money,  had  notice  of  the  first  Incumbrance  or  not."  See,  also,  Cory 
v.  Eyre,  1  De  Gex,  J.  &  S.  149,  167;  Newton  v.  Newton,  6  L.  R.  Eq. 
135,  140,  141. 

§  19.     i  Hanson  v.  Keating,  4  Hare,  1,  4. 

2  Snell,  Eq.  40;  Lord  Camden,  in  Smith  v.  Clay,  3  Brown,  Ch, 
640,  note. 

EATON,  EQ.— 5 


66  MAXIMS.  (Ch.  3 

rights  which  are  his  according  to  the  settled  doctrines  and 
principles  of  equity  jurisprudence.  But  the  plaintiff  cannot 
be  arbitrarily  compelled  to  perform  acts  or  secure  rights  to 
which  the  defendant  is  not  equitably  entitled.  The  rights 
which  the  plaintiff  may  be  compelled  to  secure  to  the  defend- 
ant must  be  connected  with  the  subject-matter  of  the  suit 
or  controversy.  Or,  to  state  the  doctrine  more  in  detail,  the 
rule  is  applied  where  the  adverse  equity  to  be  secured  or 
awarded  to  the  defendant  grows  out  of  the  very  controversy 
before  the  court,  or  out  of  such  transactions  as  the  record 
shows  to  be  a  part  of  its  history,  or  where  it  is  so  connected 
with  the  cause  in  litigation  as  to  be  presented  in  the  plead- 
ings and  proofs,  with  full  opportunity  afforded  to  the  party 
thus  recriminated  to  explain  or  refute  the  charges.* 

Application  of  Maxim. 

The  rights  or  equities  which  the  defendant,  by  invoking 
this  maxim,  may  force  the  plaintiff  to  secure,  are  not  nec- 
essarily those  which  the  defendant  might  enforce  by  a  sepa- 
rate equitable  proceeding.4  This  has  not  been  universally 
declared  to  be  the  rule,  for  it  has  been  asserted,  in  applying 
this  maxim,  that  a  plaintiff  will  never,  in  that  character,  be 
compelled  to  give  a  defendant  anything  but  what  the  defend- 
ant might,  as  a  plaintiff,  enforce  in  a  suit  brought  by  him.8 
But  this  proposition  has  not  been  generally  followed,  and 

*  Comstock  v.  Johnson,  46  N.  Y.  615,  citing  Trlpp  v.  Cook,  26 
Wend.  (N.  Y.)  143;    McDonald  v.  Neilson,  2  Cow.  (N.  Y.)  190.  14 
Am.  Dec.  431;   Casler  v.  Shlpman,  35  N.  Y.  533;   Mahoney  v.  Bost- 
wick,  96  Cal.  53,  30  Pac.  1020,  31  Am.  St  Rep.  175.    And  see  Finch 
v.  Finch,  10  Ohio  St  501,  507,  where  It  Is  said  that  the  principle 
does  not  apply  "unless  the  mutual  equities  supposed  by  the  maxim 
arise  out  of  the  subject-matter  of  the  suit,  and  are  such  as  have  a 
foundation  In  established  rules  of  law  or  of  equity;   the  maxim  In- 
vests courts  of  equity  with  no  arbitrary  discretion."    And  see  Be- 
thea  v.  Bethea  (Ala.)  22  South.  561. 

*  Sturgis  v.  Champneys,  5  Mylne  &  C.  102;    Comstock  v.  John- 
•on,  4G  N.  Y.  615,  where  Chief  Justice  Church  said:    "It  is  not  indis- 
pensable to  the  application  of  this  rule  that  the  fault  of  the  plain- 
tiff should  be  of  such  a  character  as  to  authorize  an  Independent  ac- 
tion for  an  injunction  against  him."     And  see  Charleston  &  W.  O. 
Ry.  Co.  v.  Hughes,  105  Ga.  1.  30  S.  B.  972,  70  Am.  St  Rep.  17. 

*  Hanson  v.  Keating,  4  Hare,  1,  4,  citing  Elibank  v.  Montolleu,  5 
Yes.  737,  and  Sturgls  v.  Champneys,  5  Mylne  &  a  102. 


§    19)  HE   WHO   SEKKS    EQUITY    MUST   DO    EQUITY.  67 

the  weight  of  authority  seems  to  be  in  favor  of  the  rule  as 
first  stated.  For  example,  a  court  of  equity  recognized  the 
common-law  rule  that  the  wife's  property  became  that  of 
her  husband,  and  denied  her  any  direct  remedy  against  the 
claims  of  her  husband  or  his  creditors.  But,  if  the  husband 
or  his  creditors  sought  the  aid  of  a  court  of  equity  to  secure 
control  or  possession  of  the  wife's  property,  the  court  would 
compel  the  plaintiff,  under  certain  circumstances,  as  a  con- 
dition of  his  obtaining  relief,  to  set  apart  a  sufficient  portion 
of  the  property  to  provide  for  the  comfortable  support  of  the 
wife.'  This  application  of  the  maxim  is  not  now  of  practical 
importance,  since  in  England,  and  in  nearly,  if  not  all,  of  the 
states,  statutes  have  abolished  the  husband's  common-law 
rights  in  his  wife's  property.  And,  again,  statutes  have  de- 
clared usurious  debts  and  obligations  to  be  void,  but  have 
provided  that  debtors  may  maintain  a  suit  in  equity  to  set 
aside  or  cancel  the  usurious  contract.  But  this  relief  will 
only  be  granted  on  condition  that  the  plaintiff  repay  his 
creditor  the  amount  due  on  the  contract.  Thus  the  defend- 
ant secures  a  remedy  which  he  could  not  have  secured  had 
he  sued  the  debtor  at  law  or  in  equity,  for  in  such  a  suit  the 
defense  of  usury  would  be  a  complete  bar.T  This  maxim  is 
also  applied  to  all  suits  in  a  court  of  equity  brought  by  an 
obligor  to  be  relieved  from  an  illegal  obligation,  where  the 

«  Smith  v.  Kane,  2  Paige  (N.  Y.)  303;  Short  v.  Moore,  10  Vt.  446, 
451;  Tucker  v.  Andrews,  13  Me.  124,  128;  Gardner  v.  Hooper,  3 
Gray  (Mass.)  398;  Page  v.  Estes,  19  Pick.  (Mass.)  269,  271;  How- 
ard v.  Moffatt,  2  Johns.  Ch.  (N.  Y.)  206,  208;  Haviland  v.  Bloom,  6 
Johns.  Ch.  (N.  Y.)  178,  180;  Glen  v.  Fisher,  6  Johns.  Ch.  (N.  Y.) 
83,  36. 

i  Williams  v.  Fitzhugh,  37  N.  Y.  444,  453,  where  it  is  said  that  a 
person  might  stand  on  his  legal  rights,  and  defend  any  and  every 
endeavor  to  compel  him  to  pay  a  usurious  loan,  but,  if  he  invoked 
the  aid  of  a  court  of  equity  to  give  him  affirmative  relief,  that 
court  recognized  his  equitable  obligation  to  refund  what  he  had 
received,  citing  Rogers  v.  Rathbun,  1  Johns.  Ch.  (N.  Y.)  367;  Tup- 
per  v.  Powell,  Id.  439;  Fanning  v.  Dunham,  5  Johns.  Ch.  (N.  Y.)  122, 
137,  9  Am.  Dec.  283;  Morgan  v.  Schemerhorn,  1  Paige  (N.  Y.)  544, 
19  Am.  Dec.  449.  And  see  Noble  v.  Walker.  32  Ala.  456;  Corby  v. 
Bean,  44  Mo.  379;  Whateley  v.  Barker,  79  Ga.  790,  4  S.  B.  387.  In 
New  York  the  statute  does  not  require  the  payment  of  the  usurious 
loan  before  setting  aside  the  security.  Tuthill  v.  Morris,  81  N.  Y. 
»4,  100. 


68  MAXIMS.  (Ch.  3 

obligor  has  received  a  valuable  consideration.  In  such  a 
case  equity  will  not  aid  the  obligor  unless  he  returns  to  the 
obligee  the  amount  or  makes  restitution  for  the  benefits 
which  he  has  received  under  the  illegal  contract.8  In  a  suit 
in  equity  to  restrain  the  collection  of  an  illegal  assessment, 
the  court  will  not  grant  the  injunction  unless  the  plaintiff 
first  tenders  the  lawful  tax  or  assessment.* 

Another  instance  of  the  application  of  this  maxim,  which 
is  frequently  cited,  is  where  a  contract  for  the  sale  of  land 
was  made  when  the  currency  of  the  country  was  gold.  Lat- 
er, when  the  value  of  the  land  had  greatly  increased,  and 
after  the  passage  of  the  legal-tender  act  in  1864,  the  pur- 
chaser offered  payment  in  United  States  legal-tender  notes, 
which  the  vendor  refused.  In  an  action  to  enforce  specific 
performance  of  the  contract,  the  supreme  court  held  that  the 
plaintiff  was  not  entitled  to  relief  unless  the  payment  was 
made  in  gold.10  And  one  who  comes  into  equity  to  have  a 
void  judicial  sale  of  his  land  set  aside  as  a  cloud  on  his  title 
must  do  equity  by  tendering  what  is  justly  due  on  the  debt 
for  which  the  sale  was  made.11  If  the  owner  of  an  estate 
stands  byf  and  permits  a  person  who  is  ignorant  of  his  title 
to  improve  the  estate,  and  spend  money  thereon,  a  court  of 
equity,  upon  being  asked  to  establish  the  owner's  title,  will 
require  him  to  indemnify  the  person  making  such  expendi- 
ture.1* And  if  a  purchaser  of  land  at  an  illegal  partition  sale 

•  Mtimford  v.  Trust  Co.,  4  N.  Y.  463,  483;   Deans  v.  Robertson,  64 
Miss.  195,  1  South.  159;   Tuthlll  v.  Morris,  81  N.  Y.  94,  100;   Good- 
enow  v.  Curtis,  33  Mich.  505.     See,  also,  Dranga  v.  Rowe,  127  Cal. 
506,  59  Pac.  944;   Interocean  Pub.  Co.  v.  Associated  Press  (111.  Sup.) 
56 -N.  E.  822;   German  Nat  Bank  of  Hastings  v.  Bank,  59  Neb.  7, 
80  N.  W.  49. 

•  Board  of  Cora'rs  of  Montgomery  Co.  v.  Elston,  32  Ind.  27,  2 
Am.  Rep.  327;   Merrill  v.  Humphrey,  24  Mich.  170;    Dean  v.  Charl- 
ton,  23  Wls.  590,  99  Am.  Dec.  205;   Hart  v.  Smith,  44  Wls.  213. 

10  Wlllard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed.  501.  And  see,  also. 
McGoon  v.  Shirk,  54  111.  408,  5  Am.  Rep.  122;  Wales  v.  Coffin,  105 
Mass.  328. 

"  McQulddy  v.  Ware,  20  Wall.  14,  20,  22  L.  Ed.  311;  Loney  T. 
Courtnay,  24  Neb.  580.  39  N.  W.  616;  Blackburn  v.  Clarke,  85 
Tenn.  506.  8  S.  W.  505. 

"  Miner  v.  Bookman,  50  N.  Y.  337;  Powell  v.  Thomas,  6  Hare, 
800;  Craven*  v.  Moore,  61  Mo.  178. 


§    20)        MUST    COME    INTO    EQUITY    WITH    CLEAN    HANDS.  69 

has  paid  taxes  on  the  land  in  the  belief  that  he  is  the  bona 
fide  owner,  the  claimants  seeking  to  set  aside  the  sale  will 
be  required  to  refund  such  taxes  as  a  condition  of  the  relief 
sought  by  them.18  It  is  the  application  of  this  maxim  that 
gave  rise  to  the  equitable  doctrine  of  estoppel,  and  has  had 
its  influence  upon  the  origin  and  development  of  many  other 
equitable  principles  and  doctrines,  such  as  election,  marshal- 
ing assets,  etc. 


HE    WHO   COMES    INTO   EQUITY  MUST  COME  WITH 
CLEAN   HANDS. 

20.     He  who   conies   into   equity   must  come  with 
clean  hands. 

(a)  The    maxim   must   be   understood   to  refer  to 

willful  misconduct  in  regard  to  the  matter 
in  litigation,  and  not  to  any  misconduct, 
however  gross,  -which  is  unconnected  with 
the  matter  in  litigation,  and  with  which 
the  opposite  party  in  the  cause  has  no  con- 
cern.1 

(b)  Though  both  parties  have  been  engaged  in  a 

fraudulent  or  illegal  transaction,  equitable 

i»  Chambers  v.  Jones,  72  111.  275.  Among  other  cases  where  the 
maxim  has  been  applied  are  the  following:  A  beneficiary  cannot 
set  aside  a  sale. by  his  trustee,  and  recover  back  the  property,  and 
yet  retain  the  consideration.  Fears  v.  Lynch,  28  Ga.  249.  One 
cannot  obtain  the  abatement  of  a  nuisance  on  his  neighbor's  land 
If  he  maintains  one  equally  offensive  on  his  own  premises.  Cas- 
sady  v.  Cavenor,  37  Iowa,  300.  A  party  cannot  ask  for  a  partial 
release  of  premises  from  a  past-due  incumbrance  in  accordance 
with  the  terms  of  the  trust  deed,  while  he  refuses  to  pay  what  Is 
due  from  him  under  the  provisions  of  the  same  deed.  Lane  v. 
Allen,  60  111.  App.  457.  A  deed  of  trust  cannot  be  canceled  unless 
the  complainant  has  performed  his  own  equitable  obligations. 
Jones  v.  Langhorne,  3  Bibb  (Ky.)  453.  A  stockholder  must  pay 
legal  assessments  on  his  stock  before  be  can  complain  of  the 
company  and  its  incorporators.  Yard  v.  Insurance  Co.,  10  N.  J. 
Eq.  480,  64  Am.  Dec.  467. 

§  20.     *  Snell,  Eq.  p.  42;   Smith,  Eq.  20. 


70  MAXIMS.  (Ch.  3 

relief  -will  be  granted  the  plaintiff  if  public 
policy  is  advanced  thereby,  and  he  -was 
not  in  pari  delicto  -with  the  defendant.8 

This  maxim,  or,  as  it  is  otherwise  expressed,  "He  that 
hath  committed  iniquity  shall  not  have  equity,"  is  the  equita- 
ble application  of  a  fundamental  principle  pervading  the  en- 
tire body  of  the  law, — that  no  one  shall  be  permitted  to  prof- 
it by  his  own  fraud,  or  take  advantage  of  his  own  wrong,  or 
to  found  any  claim  on  his  own  iniquity,  or  to  acquire  proper- 
ty by  his  own  crime.*  This  maxim,  while  of  the  same  nature 
as  the  one  preceding,  "He  who  seeks  equity  must  do  equity," 
has  many  distinctive  characteristics.  The  preceding  maxim 
does  not  assume  that  the  plaintiff  has  done  a  wrong  to  the 
defendant,  nor  does  it  refuse  him  relief;  but  it  grants  him 
the  remedy  sought  on  condition  that  he  secures  to  the  de- 
fendant the  rights  to  which  he  is  equitably  entitled.  But 
this  maxim  refuses  the  plaintiff  the  relief  he  seeks  when  it 
appears  that  he  has  been  guilty  of  conduct  towards  the  de- 
fendant in  respect  to  the  subject-matter  of  the  controversy, 
which,  measured  by  the  principles  of  equity,  is  unconscion- 
able and  unrighteous.  "It  says  that  whenever  a  party,  who, 
as  actor,  seeks  to  set  the  judicial  machinery  in  motion  and 
obtain  some  remedy,  has  violated  conscience,  or  good  faith, 
or  other  equitable  principle,  in  his  prior  conduct,  then  the 


•  Pom.  Eq.  Jur.  §  403;    Adams,  Eq.  175;    Tied.  Eq.  Jur.  |  16. 

•  Riggs  v.  Palmer,  115  N.  Y.  506,  22  N.  E.  188,  5  L.  R.  A.  340. 
In  this  case  it  was  held  that  a  beneficiary  under  a.  will,  who  mur- 
dered the  testator  to  prevent  a  revocation  and  to  obtain  a  speedy  en- 
joyment of  the  property,  will  not  be  permitted  to  take  either  under 
the  will  or  as  heir  or  next  of  kin,  though  there  is  no  law  declaring 
a  forfeiture;  approving  New  York  Mut.  Life  Ins.  Co.  v.  Armstrong, 
117  U.  S.  591,  6  Sup.  Ct.  877,  29  L.  Ed.  997,  holding  that  the  bene- 
ficiary under  a  policy  of  life  insurance  who  murders  the  insured 
cannot  recover  on  the  policy,  and  disapproving  Owens  v.  Owens, 
100  N.  C.  240,  6  S.  E.  794,  holding  that  a  woman  who  murders  her 
husband  may  claim  dower  in  his  land.    In  Shellenberger  v.  Ran- 
som (Neb.)  B9  N.  W.  935,  10  L.  R.  A.  810,  the  doctrine  of  Rlggs  v. 
Palmer  Is  rejected,  and  it  is  held  that  a  murder  perpetrated  for  the 
purpose  of  inheriting  the  estate  of  the  murdered  person  will  not  Jus- 
tify a  court  in  adding  an  exception  to  the  statute  of  descent,  so  as 
to  devest  the  murderer  of  the  fruits  of  his  crime, 


§   20)        MUST   COME    INTO    EQUITY   WITH    CLEAN   HANDS.  71 

doors  of  the  court  will  be  shut  against  him  in  limine.  The 
court  will  refuse  to  interfere  on  his  behalf,  to  acknowledge 
his  right,  or  to  award  him  any  remedy." 4  The  maxim 
means  that  a  court  of  equity  will  not  lend  its  active  aid  to 
one  who  has  been  guilty  of  unconscientious  or  oppressive 
conduct,  or  who  has  been  in  equal  wrong  with  the  defend- 
ant touching  the  transaction  as  to  which  the  relief  is  sought ; 
but  in  such  cases  the  court  will  leave  the  parties  where  it 
finds  them,  without  interfering  in  behalf  of  either.1 

Limitations.  ^ 

The  maxim  is  wide  in  its  scope,  and  of  general  applica- 
tion, but  it  is  limited  in  its  use  to  such  acts  on  the  part  of 
the  plaintiff  as  relate  to  the  subject-matter  of  the  controver- 
sy, and  affect  the  rights  of  the  parties.  The  court  will  not 
go  outside  of  the  case  to  examine  the  conduct  of  the  plain- 
tiff in  other  matters,  or  to  question  his  character  for  fair 
dealing.6  For  instance,  a  contract  obligation  will  be  en- 
forced, although  it  is  indirectly  connected  with  an  illegal 
transaction,  if  it  is  supported  by  an  independent  consider- 
ation, and  the  alleged  rights  of  the  plaintiff  are  not  depend- 
ent on  the  illegal  transaction.7  And  a  violation  of  a  statute 

*  Pom.  Eq.  Jur.  §  397. 

B  Kahn  v.  Walton,  46  Ohio  St.  195,  20  N.  E.  203;  Atwood  v. 
Fisk,  101  Mass.  363,  100  Am.  Dec.  124;  Harrington  v.  Bigelow,  11 
Paige  (N.  Y.)  349;  Weakley  v.  Watkins,  7  Humph.  (Tenn.)  356; 
Bleakley's  Appeal,  66  Pa.  187;  Creath  v.  Sims,  5  How.  192,  12  L. 
Ed.  Ill;  Longinette  v.  Shelton  (Tenn.  Ch.  App.)  52  S.  W.  1078; 
Liverpool,  London  &  Globe  Ins.  Co.  v.  Clunie  (C.  C.)  88  Fed.  160. 

o  Bering  v.  Earl  of  Winchelsea,  1  Cox,  318;  Lewis'  Appeal,  67 
Pa.  166,— where  the  court  said:  "It  is  not  every  unfounded  claim 
which  a  man  may  make,  or  unfounded  defense  which  he  may 
set  up,  which  will  bar  him  from  proceeding  in  a  court  of  equity. 
The  rule  that  he  who  comes  into  equity  must  come  with  clean 
hands  must  be  understood  to  refer  to  willful  misconduct  in  regard 
to  the  matter  in  litigation."  And  see,  also,  Langdon  v.  Templeton, 
66  Vt  173,  28  Atl.  806;  Edison  Electric  Light  Co.  v.  Electric  Co., 
3  C.  C.  A.  605,  53  Fed.  592.  The  maxim  does  not  apply  to  miscon- 
duct, however  gross,  which  is  unconnected  with  the  matter  in  suit. 
Mossier  v.  Jacob,  66  111.  App.  571;  Equitable  Gaslight  Co.  v.  Man- 
ufacturing Co.,  65  Md.  73,  3  Atl.  108.  And  see  Upchurch  v.  Ander- 
son (Tenn.  Ch.  App.)  52  S.  W.  917;  City  of  Chicago  v.  Transit  Co., 
164  111.  224,  45  N.  E.  430,  35  L.  R.  A.  281. 

T  Armstrong  v.  Bank,  133  U.  S.  469,  10  Sup.  Ct  450,  33  L.  Ed.  747. 


n  MAXIMS.  (Ch.  3 

with  respect  to  platting  land  within  city  limits  does  not  pre- 
vent the  owner  from  resorting  to  equity  to  enjoin  the  flood- 
ing of  the  property  by  a  private  person ;  *  nor  will  fraud 
in  obtaining  a  patent  of  public  lands  from  the  federal  gov- 
ernment prevent  the  reformation  of  a  deed,  whereby  one 
of  the  participants  in  the  fraud,  for  an  independent  valuable 
consideration,  conveys  his  interest  in  the  land  to  his  con- 
federate." So,  also,  the  fact  that  the  parties  have  been  en- 
gaged in  illegal  transactions,  which  have  been  fully  com- 
pleted, will  not  prevent  one  of  them  from  resorting  to  equity 
for  relief  as  to  subsequent  independent  collateral  contracts 
or  transactions,  in  which  the  original  illegal  transaction 
forms  no  part  of  the  consideration.10 

Another  limitation  in  the  application  of  this  maxim  has 
been  stated  thus :  Where  the  parties  to  a  contract  which  is 
against  public  policy  or  illegal  are  not  in  pari  delicto,  and 
where  public  policy  is  considered  as  advanced  by  allowing 
either,  or  at  least  the  more  excusable,  to  sue  for  relief 
against  the  transaction,  relief  is  given  to  him.11  Or,  as  it 

•  Sylvester  v.  Jerome,  19  Colo.  128,  34  Pac.  700. 

•  Foster  v.  Winchester,  92  Ala.  497,  9  South.  83. 

10  Armstrong  v.  Toler,  11  Wheat  258,  271,  6  L.  Ed.  468;   Tenant 
T.  Elliott,  1  Bos.  &  P.  3;   Thomson  v.  Thomson,  7  Yes.  470;    Sharp 
v.  Taylor,  2  Phil.  Ch.  801.    In  Sykes  v.  Beadou,  11  Ch.  Div.  170,  193, 
194,  Jessel,  M.  R.,  says:     "You  cannot  ask  the  aid  of  a  court  of 
equity  to  carry  out  an  Illegal  contract;    but  in  cases  where  the 
contract  Is  actually  at  an  end,  or  is  put  an  end  to,  the  court  will 
interfere  to  prevent  those  who  have,  under  the   illegal   contract, 
obtained  money  belonging  to  other  persons,  on  representation  that 
the  contract  was  legal,  from  keeping  that  money.    *    *    *    It  does 
not  follow  that  you  cannot,  In  some  cases,  recover  money  paid  over 
to  third  persons  in  pursuance  of  the  contract;   and  it  does  not  fol- 
low that  you  cannot,  In  other  cases,  obtain,  even  from  the  parties 
to  the  contract,  moneys  which  they  have  become  possessed  of  by 
representations  that  the  contract  was  legal,  and  which  belong  to 
the  persons  who  wish  to  recover  them." 

11  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  060,  679.    In  the  case  of 
Tracy  v.  Talmage,  14  N.  Y.  162,  181,  Judge  Selden  baa  discussed 
this  rule,  and  cited  a  number  of  cases  relative  thereto.     He  says 
(at  page  181):     "The  maxim,  'Ex  dolo  malo  non  oritur  actio,'  is 
qualified  by  another,  viz.,  'In  par!  delicto  mellor  est  conditio  de- 
fendentis.'     Unless,  therefore,   the  parties  are  In  pari  delicto,  as 
well  as  pnrrlceps  crirninls,  the  courts,  although  the  contract  be  Ille- 
gal, will  afford  relief,  where  equity  requires  it,  to  the  more  Innocent 


§    20)        MUST   COME    INTO    EQUITY    WITH    CLEAN    HANDS.  73 

has  also  been  expressed,  when  the  parties  are  not  equally 
guilty,  or  when  the  public  interest  is  advanced  by  allowing 
the  more  excusable  of  the  two  to  sue  for  relief,  the  courts 
will  aid  the  injured  party  by  setting  aside  the  contract,  and 
restoring  him,  so  far  as  possible,  to  his  original  position.12 
Upon  the  application  of  this  doctrine  it  has  been  held  that 
usurious  interest  paid  by  a  borrower  might  be  recovered  in- 
dependently of  the  statute,  and  that  the  maxim,  "Inter  par- 
tes  in  pari  delicto  potior  est  conditio  defendentis,"  did  not 
apply,  as  the  law  considered  the  borrower  the  victim  of  the 
usurer;  and  where  statutes  protecting  one  set  of  men  from 
another  set  of  men  prohibit  certain  transactions,  the  parties 
thereto  are  not  in  pari  delicto.18  Many  cases  have  been  de- 
cided to  the  effect  that  a  plaintiff  might  be  relieved  from 
a  usurious  contract,  all  of  which  appear  to  be  on  the  theory 
that  the  law  was  enacted  to  prevent  oppression,  and  that 
public  policy  will  be  advanced  by  assisting  the  oppressed 
party  who  is  not  in  pari  delicto.14  Finally,  it  may  be  stated 
that  two  parties  may  often  concur  in  an  illegal  act  without 
being  in  all  respects  in  pari  delicto.  In  many  such  cases  re- 
lief from  thz  contract  will  be  afforded  to  the  less  guilty  party 
when  he  appears  to  have  acted  under  circumstances  of  im- 
position, hardship,  or  undue  influence,  and  especially  where 
there  is  necessity  of  supporting  public  interest,  or  a  well-set- 
tled policy  of  the  law,  whether  that  policy  be  declared  in  the 
statutes  of  the  state,  or  be  the  outgrowth  of  the  decisions  of 
the  courts.15 


party."  See,  also,  White  v.  Bank,  22  Pick.  (Mass.)  186;  Lowell  v. 
Railroad  Corp.,  23  Pick.  (Mass.)  82,  34  Am.  Dec.  33;  Prescott 
V.  Norris.  32  N.  H.  101. 

12  Duval  v.  Wellman,  124  N.  Y.  156,  160,  26  N.  B.  343. 

«  Wheaton  'v.  Hibbard,  20  Johns.  (N.  Y.)  290,  11  Am.  Dec.  284; 
Browning  v.  Morris,  2  Cowp.  790. 

i*  Fanning  v.  Dunham,  5  Johns.  Ch.  (N.  Y.)  122,  142-144;  Peters 
v.  Mortimer,  4  Edw.  Ch.  (N.  Y.)  279. 

IB  Duval  v.  Wellman,  124  N.  Y.  156,  161.  26  N.  E.  343;  Smith  v. 
Bruning,  2  Vern.  392;  Goldsmith  v.  Bruning,  1  Eq.  Cas.  Abr.  89. 
In  Ford  v.  Harrington,  16  N.  Y.  285,  it  is  held  that,  where  confi- 
dential relations  exist  between  the  parties,— as  between  an  attor- 
ney and  his  client,— and  a  conveyance  is  made  to  the  attorney  by  his 
client  to  defraud  the  creditors  of  the  client  on  the  attorney's  prom- 
ise that  he  will  reconvey,  although  the  transaction  Is  illegal,  the  at- 


74  MAXIMS.  (Ch.  3 

Application  of  Maxim. 

The  maxim  applies  not  only  to  fraudulent  and  illegal 
transactions,  but  to  any  unrighteous,  unconscientious,  or  op- 
pressive conduct  by  one  seeking  equitable  interference  in 
his  own  behalf.  A  court  of  equity  will  not  decree  the  spe- 
cific performance  of  a  contract  unless  it  is  strictly  equitable, 
and  free  from  trickery  and  deception  on  the  part  of  the  par- 
ty seeking  such  performance.18  Even  if  the  inequity  of  the 
plaintiff  is  insufficient  to  warrant  the  court  in  canceling  the 
contract,  yet  the  plaintiff  may  be  refused  its  enforcement. 
And  equity  will  refuse  its  aid  in  the  enforcement  of  a  con- 
tract where  the  plaintiff  has  practiced  fraud  on  the  defend- 
ant, and  also  where  the  plaintiff  has  been  guilty  of  uncon- 
scionable conduct  which  does  not  amount  to  legal  fraud.17 
If  the  plaintiff  is  guilty  of  fraud  upon  his  adversary,  he  will 
not  be  given  relief.  This  has  been  instanced  where  a  minor, 
fraudulently  concealing  his  age,  obtained  from  his  trustees 
a  part  of  a  sum  of  stock  to  which  he  was  entitled  on  coming 
of  age,  and,  when  of  age,  a  few  months  after,  he  applied  for 
and  received  the  residue  of  such  stock.  Afterwards  a  suit 
was  instituted  to  compel  the  trustees  to  pay  over  again 
the  portion  of  stock  improperly  paid  during  minority;  but 

torney  must  reconvey  to  the  client  on  the  consideration  price  be- 
ing refunded  to  him;  citing  Story,  Eq.  Jur.  300;  Osborne  v.  Wil- 
liams, 18  Ves.  379.  The  case  of  Ford  v.  Harrington  has  been  fol- 
lowed in  Herrick  v.  Lynch,  49  111.  App.  657,  affirmed  In  150  111.  283, 
87  N.  E.  221. 

i«  Sherman  v.  Wright  49  N.  Y.  227;  Weise's  Appeal,  72  Pa.  351; 
Snell  v.  Mitchell,  65  Me.  48,  50;  Crane  v.  Decamp,  21  N.  J.  Eq. 
414;  Plummer  v.  Keppler,  26  N.  J.  Eq.  481;  Phillips  T.  Stauch,  20 
Mich.  369;  Mississippi  &  M.  R.  Co.  v.  Cromwell.  91  U.  S.  643,  23 
L.  Ed.  367. 

IT  Marcy  v.  Dunlap,  5  Lans.  (N.  Y.)  365;  Evroy  v.  Nicholas,  2  Eq. 
Cas.  Abr.  488.  For  other  instances  where  specific  performance  will 
be  refused,  see  Fish  v.  Leser,  69  111.  394;  Rutland  Marble  Co.  v. 
Ripley,  10  Wall.  339,  356,  357,  19  L.  Ed.  955;  Seymour  v.  Delancey, 
6  Johns.  Ch.  (N.  Y.)  222  (where  the  court  refused  Its  aid  because 
of  the  Inadequacy  of  price  mentioned  In  the  contract,  since  it  gave 
the  contract  a  character  of  unreasonableness,  inequality,  and  hard- 
ship);  Quinn  v.  Roath,  37  Conn.  16,  24;  Bruck  v.  Tucker,  42  Cal. 
346;  Smoot  v.  Rea.  19  Md.  398;  Auter  v.  Miller,  18  Iowa,  405; 
Burke  v.  Seely,  46  Mo.  334.  And  see  Raasch  v.  Raasch,  100  Wis. 
400,  76  N.  W.  591;  Lawton  v.  Estea,  167  Mass.  181,  45  N.  E.  90. 


§    20)        MUST   COME    INTO    EQUITY    WITH    CLEAN    HANDS.  75 

the  court  held  that  the  concealment  of  the  age  of  the  minor 
was  a  fraud  on  the  trustees,  and  neither  the  minor  nor  his 
assignee  could  compel  the  trustees  to  pay  against  the  stock 
paid  during  minority.18  Any  material  misrepresentation  in 
a  trade-mark  tending  to  deceive  the  public  as  to  the  place 
where  the  article  marked  is  manufactured,  or  as  to  the  ma- 
terials composing  it,  is  a  fraud  on  the  public,  and  deprives 
the  owner  of  the  trade-mark  of  the  right  to  relief  for  in- 
fringement in  equity.19  And  a  grantor  in  a  conveyance  exe- 
cuted to  defraud  creditors  cannot  maintain  a  suit  in  equity 
for  its  cancellation.20  And,  if  the  contract  in  fraud  of  cred- 
itors is  executory,  a  court  of  equity  will  not  interfere  in  fa- 
vor of  either  party  to  enforce  its  performance.21  Equity 

is  Overton  v.  Vanister,  3  Hare,  503.  And  see,  also,  Savage  v. 
Foster,  9  Mod.  35;  Nelson  v.  Stocker,  4  De  Gex  &  J.  458,  464. 

i»  Prince  Mfg.  Co.  v.  Paint  Co.,  135  N.  Y.  24,  31  N.  E.  990,  17 
L.  R.  A.  129;  Joseph  v.  Macowsky,  96  Cal.  518,  31  Pac.  914,  19  L. 
R.  A.  53;  Manhattan  Medicine  Co.  v.  Wood,  108  U.  S.  218,  2 
Sup.  Ct.  436,  27  L.  Ed.  706;  Palmer  v.  Harris,  60  Pa.  156;  Kenney 
v.  Gillet,  70  Md.  574,  17  Atl.  499. 

20  Dent  v.  Ferguson,  132  U.  S.  50,  10  Sup.  Ct  13,  33  L.  Ed.  242; 
Freeman  v.  Sedgwick,  6  Gill  (Md.)  28,  46  Am.  Dec.  650.     But  a 
debtor  may  abandon  his  fraudulent  purpose,  and  maintain  suit  to 
compel  a  reconveyance  for  the  benefit  of  his  creditors.     Carll  v. 
Emery,  148  Mass.  32,  18  N.  E.  574,  1  L.  R.  A.  618.    It  is  a  conclu- 
sive rule  of  law,  with  a  few  exceptions,  that  deeds,  conveyances, 
contracts,  and  other  transactions  entered  into  in  fraud  of  creditors 
are  valid  between  the  parties.'   Jackson  v.  Cadwell,  1  Cow.  (N.  Y.) 
622;    Owen  v.  Dixon,  17  Conn.  496;    Waterbury  v.  Westervelt,  9 
N.  Y.  598;   Schenck  v.  Hart,  32  N.  J.  Eq.  774,  781;  Osborne  v.  Moss, 
7  Johns.  (N.  Y.)  161,  5  Am.  Dec.  252,  and  note;  Jackson  v.  Garnsey, 
16  Johns.  (N.  Y.)  189,  192;   Finley  v.  McConnell,  60  111.  259;   Smith 
v.  Grim,  26  Pa.  95,  65  Am.  Dec.  400;   Choteau  v.  Jones,  11  111.  300, 
60  Am.  Dec.  460,  and  note.    And  see  cases  cited  in  note  to  Whit- 
worth  v.  Thomas,  3  Am.  St  Rep.  727. 

21  Nellls  v.  Clark,  20  Wend.  (N.  Y.)  24,  where  the  court  held  that, 
while  an  executed  contract  in  fraud  of  creditors  might  be  valid  as 
between  the  parties,  an  executory  contract  for  the  same  purpose 
could  not  be  enforced  between  the  parties.     Followed  In  Moseley 
v.  Moseley,  15  N.  Y.  334,  335.    This  rule  was  dissented  from  in  Har- 
vey v.  Varney,  98  Mass.  118,  where  it  was  held  that  it  made  no  differ- 
ence whether  the  contract  was  executed  or  executory.    The  rule, 
as  first  stated,  is  followed  in  Walton  v.  Tusten,  49  Miss.  569,  576; 
Shank  v.  Simpson,  114  Pa.  208,  212,  6  Atl.  847;    Winton  v.  Free- 
man, 102  Pa.  366,  369  (where  the  court  said:    "It  is  not  the  province 


76  MAXIMS.  (Ch.  3 

will  refuse  relief  to  one  who,  in  seeking  its  aid,  discloses  his 
own  turpitude  in  the  very  contract  on  which  his  action  de- 
pends.22 And,  where  both  parties  have  been  engaged  in  a 
fraudulent  transaction,  neither  is,  in  general,  entitled  to  the 
aid  of  a  court  of  equity  as  against  the  other,  who  has  ob- 
tained the  fruits  of  the  crime;  it  matters  not  whether  the 
transaction  be  merely  prohibited  by  statute,  or  whether  it  is 
intrinsically  immoral  or  vicious.28  When  one  party,  pursu- 
ant to  a  prior  arrangement,  has  fraudulently  secured  prop- 
erty for  the  benefit  of  another,  equity  will  not  aid  the 
fraudulent  beneficiary  by  compelling  a  conveyance  of  such 
property  to  him.24  And,  pursuant  to  the  principle  of  this 
maxim,  equity  will  refuse  its  aid  to  any  of  the  parties  to  a 
transaction  which  is  in  violation  of  a  statute."  And  the 

of  the  law  to  help  a  rogue  out  of  his  tolls.  The  rule  Is  to  leave  the 
parties  where  It  finds  them,  giving  no  relief  and  no  countenance  to 
illegal  contracts").  And  see  Hukill  v.  Yoder,  189  Pa.  233,  42  Atl.  122. 

««  Kunkle's  Appeal,  107  Pa.  368;  Pringle  v.  Pringle,  59  Pa.  281, 
286. 

23  Harrington  v.  Blgelow,  11  Paige  (N.  T.)  349;  Trustees  of 
Gosh  en  Tp.  v.  Railroad  Co.,  12  Ohio  St  624;  Sample  v.  Barnes, 
14  How.  70,  14  L.  Ed.  330.  Application  of  principle  to  gambling 
transactions,  see  Smith  v.  Kammerer,  152  Pa.  98,  25  Atl.  165; 
Kahn  v.  Walton,  46  Ohio  St  195,  20  N.  E.  203;  Atwood  v.  Fisk,  101 
Mass.  363,  100  Am.  Dec.  124.  And  see  Union  Nat.  Bank  v.  Hines, 
177  111.  417,  53  N.  E.  83. 

*<  Johns  v.  Norris,  22  N.  J.  Eq.  102;  Allen  v.  Berry,  50  Mo.  90; 
Mussel  in  an  v.  Kent,  33  Ind.  452;  Hunt  v.  Rowland,  28  Iowa,  349; 
Walker  v.  Hill's  Ex'rs,  22  N.  J.  Eq.  513.  In  the  last  case  an  exe- 
cution debtor,  by  a  secret  arrangement,  procured  a  person  to  buy 
In  property  at  an  auction  sale  for  the  debtor's  benefit  In  such  a 
manner  as  to  be  fraudulent  against  the  other  creditors.  The  court 
refused  to  grant  relief  by  compelling  a  conveyance  by  the  purchaser 
to  the  execution  debtor.  See,  also,  Bleakley's  Appeal,  66  Pa.  187. 

«  As  wftere  a  number  of  persons  conspiring  contrary  to  statute 
to  unlawfully  advance  the  price  of  an  article  of  food,  the  courts 
will  not  Intervene  In  favor  of  any  one  of  the  parties  to  give  him 
redress  for  frauds  perpetrated  by  another  to  his  detriment  in  car- 
rying out  the  unlawful  enterprise.  Leonard  v.  Poole,  114  N.  Y. 
871.  21  N.  E.  707,  4  L.  R.  A.  728.  Similarly  held  where  a  company 
was  formed  for  the  consummation  of  an  unlawful  lottery  scheme. 
Sykes  v.  Beadon,  11  Ch.  Div.  170.  The  illegality  of  an  agreement 
for  the  formation  of  an  Illegal  Industrial  "trust"  taints  the  whole 
contract,  and  therefore  equity  will  leave  the  parties  to  the  agree- 


§  21)     THAT  AS  DONE  WHICH  OUGHT  TO  BE  DONE.       77 

same  may  be  said  when  the  transaction  is  malum  in  se,  as 
opposed  to  public  policy  and  good  morals.2*  An  action  can- 
not be  maintained  to  recover  the  profits  of  an  illegal  transac- 
tion where  it  is  necessary,  in  order  to  sustain  the  action,  to 
appeal  to  and  depend  upon  the  terms  of  an  illegal  agree- 
ment.27 


21.    Equity  looks   on  that  as  done  which  ought  to 
be  done. 

This  maxim  is  of  great  practical  importance.  It  is  the 
foundation  of  many  great  equitable  doctrines.  Its  appli- 
cation has  given  rise  to  many  equitable  estates,  and  its  ef- 
fect will  be  seen  in  one  form  or  another  throughout  the 
whole  system  of  equity  jurisprudence.  It  has  been  attempt- 
ed by  some  writers  to  limit  the  scope  of  this  maxim  to  ex- 
press executory  contracts,  and  to  those  dispositions  of  prop- 
erty, by  grant  or  otherwise,  which  give  rise  to  an  equitable 
conversion.  But  the  better  opinion  is  that  the  maxim  will 
find  an  effective  application  in  every  instance  where  an  equi- 
table duty  in  respect  to  the  subject-matter  rests  on  one  per- 
son in  favor  of  another;  "to  every  kind  of  case  where  an 
affirmative  equitable  duty  to  do  some  positive  act  devolves 
upon  one  party,  and  a  corresponding  equitable  right  is  held 
by  another."  *  The  right  to  demand  the  performance  of 

ment  as  It  finds  them,  whether  the  agreement  Is  executed  or  par- 
tially performed.  Unckles  v.  Colgate,  148  N.  Y.  529,  43  N.  E.  59. 

a«  1  Pom.  Eq.  Jur.  §  402. 

»T  Gray  v.  Oxnard  Bros.  Co.,  59  Hun  (N.  Y.)  387,  13  N.  Y.  Supp. 
86,  citing  Keene  v.  Kent,  4  N.  Y.  St.  Rep.  431;  Woodworth  v.  Ben- 
nett, 43  N.  Y.  273,  3  Am.  Rep.  706. 

§  21.  il  Pom.  Eq.  Jur.  §  364.  Adams,  Eq.  (6th  Am.  Ed.)  p.  295, 
says:  "What  ought  to  be  done  Is  considered  in  equity  as  done; 
and  Its  meaning  is  that,  whenever  the  holder  of  property  Is  sub- 
ject to  an  equity  In  respect  of  It,  the  court  will,  as  between  the  par- 
ties to  the  equity,  treat  the  subject-matter  as  if  the  equity  had  been 
worked  out,  and  as  Impressed  with  the  character  which  It  would 
then  have  borne.  The  simplest  operation  of  this  maxim  is  found  In 
the  rule  that  trusts  and  equities  of  redemption  are  treated  as  es- 
tates; but  Its  effect  Is  most  obvious  In  the  constructive  change  of 
property  from  real  to  personal  estate,  so  as  to  introduce  new  laws 
of  devolution  and  transfer." 


78  MAXIMS.  (Ch.  3 

an  equitable  duty  must  exist;  for  equity  regards  as  done 
only  what  "ought"  to  have  been  done,  not  what  "might" 
have  been  done.* 

Application  of  Maxim. 

The  most  direct  application  of  the  maxim  is  where,  by 
deed  or  will,  it  is  directed  that  money  be  laid  out  in  land,  in 
which  case  the  money  is  already  treated  as  land  in  equity; 
and,  conversely,  where  land  is,  by  agreement,  contracted,  or, 
by  will,  directed,  to  be  sold,  it  is  considered  and  treated  as 
money.8  Thus  arose  the  equitable  doctrine  of  conversion, 
which  will  be  discussed  later.4  The  whole  doctrine  of  equi- 
table mortgages  is  founded  on  this  maxim.  Where  a  party 
advances  money  to  another  on  the  faith  of  a  verbal  agree- 
ment by  the  latter  to  secure  its  payment  by  a  mortgage  on 
certain  lands,  which  is  never  executed,  or  is  executed  in  such 
an  informal  and  defective  manner  as  to  fail  in  effectuating 
the  purpose  of  its  execution,  equity  will  impress  on  the  land 
intended  to  be  mortgaged  a  lien  in  favor  of  the  creditor  who 
advanced  the  money,  for  the  security  and  satisfaction  of  his 
debt.6  And  based  on  this  maxim  is  the  settled  doctrine  in 

«  Burgess  v.  Wheate,  1  W.  Bl.  123,  129. 

»  Snell,  Eq.  p.  45.  Nothing  is  better  established  than  this  prin- 
ciple that  money  directed  to  be  employed  In  the  purchase  of  land, 
and  land  directed  to  be  sold  and  turned  into  money,  are  to  be  con- 
sidered as  that  species  of  property  into  which  they  are  directed  to 
be  converted,  and  this  in  whatever  manner  the  direction  is  given. 
Fletcher  v.  Ashburuer,  1  Brown,  Ch.  497,  cited  In  Craig  v.  Leslie,  3 
Wheat  577,  4  L.  Ed.  4GO. 

«  Post,  c.  10. 

»  Sprague  v.  Cochran,  144  N.  Y.  104,  112,  38  N.  E.  1000.  The 
court  said:  "In  order  to  apply  this  maxim  according  to  its  true 
meaning,  the  court  will  treat  the  subject-matter,  as  to  collateral 
consequences  and  Incidents,  in  the  same  manner  as  if  the  final  acts 
contemplated  by  the  parties  had  been  executed  exactly  as  they 
ought  to  have  been,  not  as  the  parties  might  have  executed  them, 
always  regarding  the  substance,  and  not  the  form,  of  the  transac- 
tion." See,  also,  Payne  v.  Wilson,  74  N.  Y.  348;  Freeman  v.  Free- 
man, 43  N.  Y.  34,  3  Am.  Rep.  657;  Smith  v.  Smith,  125  N.  Y.  224, 
26  N.  E.  259;  Daggett  v.  Rankln,  31  Cal.  321,  326  (where  Cuney,  C. 
J..  said:  "Where  a  mortgage  covenants  to  insure  the  premises 
for  the  benefit  of  the  mortgagee,  and  the  mortgagor  or  some  other 
person  procures  insurance  payable  to  the  mortgagor  without  the 
knowledge  of  the  mortgagee,  and  with  no  intent  to  perform  the  cove- 


§  21)    THAT  AS  DONE  WHICH  OUGHT  TO  BE  DONE.        79 

equity  that  the  vendee  in  an  executory  contract  for  the  sale 
of  land  is  the  equitable  owner  of  the  land,  while  the  vendor 
has  merely  a  lien  for  the  purchase  money;  and,  being  thus 
in  equity  the  owner,  the  vendee  must  suffer  any  loss  which 
may  happen,  and  is  entitled  to  any  benefit  which  may  ac- 
crue, to  the  estate  in  the  interim  between  the  agreement  and 
the  conveyance.8  In  such  cases,  by  the  doctrine  of  equitable 
conversion  having  its  root  in  the  maxim  under  discussion, 
the  vendee's  interest  under  the  contract  is  to  be  treated  as 
real  estate,  while  the  vendor's  interest  is  personal.7  The  ven- 
dor is  regarded  as  trustee  of  the  land  for  the  benefit  of  the 
purchaser,  and  liable  to  account  to  him  for  the  rents  and 
profits ;  and  the  purchaser  will  be  treated  as  trustee  of  the 
purchase  money,  if  not  paid,  and  will  be  charged  with  inter- 
est thereon.8  The  entire  doctrine  of  trusts,  both  express 
and  constructive,  may  be  said  to  rest  on  the  principle  that 
equity  looks  upon  that  as  done  which  ought  to  have  been 
done ;  for  in  equity  the  right  of  the  beneficiary  to  enjoy  the 
profits  of  property,  the  legal  title  of  which  is  vested  in  an- 
other, is  fully  protected  and  well  preserved,  while  at  law  only 
the  legal  title  of  the  trustee  is  recognized.9  The  equitable 

nant,  yet  equity,  looking  on  that  as  done  which  ought  to  have  been 
done,  will  treat  the  insurance  as  effected  under  the  agreement,  and 
will  give  the  mortgagee  his  equitable  lien  accordingly");  Ames  v. 
Richardson,  29  Minn.  330,  13  N.  W.  137;  Wheeler  v.  Insurance  Co., 
101  U.  S.  439,  25  L.  Ed.  1055;  Cromwell  v.  Insurance  Co.,  44  N.  Y. 
42,  4  Am.  Rep.  641. 

«  Paine  v.  Meller,  6  Ves.  349;  Revell  v.  Hussey,  2  Ball  &  B.  287; 
Brewer  v.  Herbert,  30  Md.  301,  96  Am.  Dec.  582;  Haughwout  v. 
Murphy,  22  N.  J.  Eq.  531;  Moyer  v.  Hinman,  13  N.  Y.  180.  In  such 
cases  the  vendor  holds  the  legal  estate  as  trustee  for  the  purchasers. 
Thomson  v.  Smith,  63  N.  Y.  301,  303;  Crawford  v.  Bertholf,  1  N. 
J.  Eq.  460;  King  v.  Ruckman,  21  N.  J.  Eq.  599. 

i  Thomson  v.  Smith,  63  N.  Y.  301,  303;  Moore  v.  Burrows,  34 
Barb.  (N.  Y.)  176;  Schroeppel  v.  Hopper,  40  Barb.  (N.  Y.)  425. 

«  Worrall  v.  Munn,  38  N.  Y.  142.  Where  the  vendor  Is  himself  In 
the  actual  occupation  of  the  premises,  he  Is  himself  charged  with 
the  value  of  the  use  and  occupation.  Robertson  v.  Skelton,  12 
Beav.  260;  Dyer  v.  Hargrave,  10  Ves.  506. 

» 1  Pom.  Eq.  Jur.  §  875,  where  It  is  said:  "The  beneficiary  may 
not  have  anything  which  the  law  requires  as  a  'title';  he  may  even 
be  without  any  written  evidence  of  his  right;  his  proprietorship 
may  rest  wholly  upon  acts  and  words;  but  still  he  Is  the  equitable 
owner,  because  equity  treats  that  as  done  which  In  good  conscience 


80  MAXIMS.  (Cb.  3 

estate  is  vested  in  the  beneficiary,  and  he  is. clothed  with  all 
the  attributes  of  a  true  owner. 

Among  other  equitable  estates  which  are  affected  by  this 
important  maxim  is  the  mortgagor's  equity  of  redemption. 
A  mortgage  vests  in  the  mortgagee  a  legal  estate,  which, 
upon  breach  of  the  condition,  becomes  absolute.  But  equi- 
ty will  nevertheless  secure  to  the  mortgagor  a  right  to  re- 
deem, and  the  mortgagee  may  be  compelled  to  reconvey  the 
property  to  the  mortgagor.  This  equitable  right  of  the 
mortgagor  is  deemed,  in  pursuance  of  the  spirit  of  this 
maxim,  an  estate,  and  not  a  mere  chose  in  action.  The  real, 
beneficial  ownership  of  the  land  remains  in  the  mortgagor, 
subject  to  the  lien  of  the  mortgagee  for  the  payment  of  the 
amount  secured  by  the  mortgage. 

This  maxim  also  applies  to  cases  of  fraud.  Not  only  does 
equity  look  on  things  agreed  or  directed  to  be  done  as  done, 
but,  if  parties  have  been  prevented  by  fraud  from  doing  cer- 
tain acts,  equity  will  interfere,  and  treat  the  case  as  if  the 
acts  had  been  actually  performed.10  The  principle,  as  thus 
applied,  is  that  a  person  is  not  allowed  to  derive  any  ad- 
vantage from  his  wrongdoing,  and  that,  in  order  to  prevent 
this,  a  court  of  equity  will  treat  him  as  having  done  that 
which  ought  to  have  been  done.11  But  equity  will  not  con- 
sider that  as  done  which  ought  to  have  been  done  if  to  do  so 
would  injuriously  affect  third  parties  who  have  contracted 
with  reference  to  what  actually  has  been  done.12  Thus,  eq- 
uity will  not  consider  a  transaction  as  a  pledge  when  there 

ought  to  have  been  done."  In  this  connection,  see,  also,  McDon- 
ough  v.  O'Mcl.  113  Mass.  92;  Fisher  v.  Fobs,  22  Mich.  454;  Mitch- 
ell v.  Read,  61  N.  Y.  123,  19  Am.  Rep.  252;  Jones  v.  Van  Doren,  130 
U.  S.  U84,  9  Sup.  Ct  685.  32  L.  Ed.  1077;  Gisborn  v.  Insurance  Co., 
142  U.  8.  326,  335,  12  Sup.  Ct  277,  35  L.  Ed.  1029.  and  the  follow- 
ing English  cases:  Dyer  v.  Dyer,  2  Cox,  Ch.  92;  Id.,  1  White  &  T. 
Lead.  Cas.  Eq.  203;  Keech  v.  Saudford,  1  White  &  T.  Lead.  Gas.  Eq. 
48;  Uurguenln  v.  Baseley,  14  Ves.  273;  In  re  Adams  &  Kensington 
Vestry,  27  Ch.  Dlv.  394;  Id.,  Brett  Lead.  Cas.  Mod.  Eq.  13. 

10  Story,  Eq.  Jur.  8  187;  Moore  v.  Crawford,  130  U.  8.  122,  128, 
0  Sup.  Ct.  447,  32  L.  Ed.  878.  And  see  Shlpman  y.  Lord  (N.  J. 
Err.  &  App.)  46  Atl.  1101. 

»»  London,  C.  &  D.  R.  Co.  v.  Railway  Co.,  40  Ch.  Dlr.  100. 

"Vose  v.  Cowdrey,  49  N.  Y.  336;  Clabaugh  T.  Byerly,  7  Gill 
(Md.)  354,  48  Am.  Dec.  575. 


§    22)  THE    IMTENT    RATHER   THAN   TO    THE    FORM.  81 

is  no  delivery  of  the  thing  pledged,  though  the  parties  so 
intended,  if  credit  has  been  given  to  the  pledger  by  third 
persons  which  might  not  have  been  given  if  he  had  not  re- 
mained in  possession  of  the  thing  pledged.13  Nor  does  the 
maxim  apply  in  favor  of  strangers  and  volunteers,  but  only 
in  favor  of  the  parties  to  the  transaction  and  their  privies.14 


22.    Equity  looks  to  the  intent  rather  than  to  the 
form. 

The  principle  of  this  maxim  is  of  great  practical  import- 
ance, and  affects  to  a  greater  or  less  extent  the  whole  system 
of  equity  jurisprudence.  Equity,  at  the  outset,  combated  the 
harsh  formalism  of  the  common  law.  It  attempted  to  relieve 
suitors  from  the  evil  consequences  of  blindly  following  the 
rigid  forms  required  by  courts  of  law,  and  at  a  very  early 
time  disregarded  such  forms,  and  examined  into  the  sub- 
stance of  contracts  and  the  intent  of  parties.  It  early  be- 
came its  purpose  to  enforce  the  rights  and  duties  of  parties 
to  a  transaction  in  accordance  with  the  real  intent  of  such 
parties  and  the  true  purposes,  objects,  and  consequences  of 
such  transaction.  "Equity  always  seeks  for  the  real  intent 
under  cover  of  whatever  forms  and  appearances,  and  will 
give  effect  to  such  intent  unless  prevented  by  some  positive 
and  mandatory  rule  of  law."  *  It  would  in  no  case  permit 
the  veil  of  form  to  hide  the  true  effect  or  intention  of  the 
transaction.  The  rigid  formality  of  the  common  law  is  not 

"  Casey  v.  Cavaroc,  96  U.  S.  467,  24  L.  Ed.  779. 

i«  Snell,  Eq.  p.  10;  Smith,  Eq.  (15th  Ed.)  p.  21;  Chetwynd  v. 
Morgan,  31  Ch.  Div.  596;  Redfield  v.  Parks,  132  U.  S.  239,  247,  248, 
10  Sup.  Ct  83,"  33  L.  Ed.  327.  It  has  also  been  held  that  this  maxim 
does  not  apply  to  errors  or  omissions  in  the  record  of  Judicial  pro- 
ceedings. King  v.  French,  2  Sawy.  441,  Fed.  Cas.  No.  7,793. 

S  22.  il  Pom.  Eq.  Jur.  §  378.  Equity  looks  beyond  the  form  of  a 
transaction,  and  shapes  its  Judgment  in  such  a  way  as  to  carry  out 
the  purposes  of  the  parties  to  the  agreement,  and  to  protect  either 
of  them  against  any  unconscionable  advantage  to  be  derived  from 
the  apparent  form  In  which  their  transaction  has  taken  place. 
Campbell  v.  Freeman,  99  Cal.  546,  34  Pac.  113.  Equity  looks 
through  form  to  substance.  Texas  v.  Hardenberg,  10  Wall.  89, 
19  L.  Ed.  839. 

EATON.EQ.— 6 


82  MAXIMS  (Ch.  3 

so  apparent  at  the  present  time,  and  the  consequent  injustice 
has  been  greatly  lessened.  But  this  result  has  been  brought 
about  by  the  influence  of  this  once  exclusively  equitable 
principle.  With  increasing  liberality  at  common  law,  this 
maxim  has  become  of  universal  application  in  all  courts,  of 
law  as  well  as  equity. 

This  maxim  should  be  collated  with  the  one  preceding. 
Justice  Washington,  in  speaking  of  the  doctrine  of  conver- 
sion, says  :  "The  principle  upon  which  the  whole  of  this  doc- 
trine is  founded  is  that  a  court  of  equity,  regarding  the  sub- 
stance, and  not  the  mere  forms  and  circumstances,  of  agree- 
ments and  other  instruments,  considers  things  directed  or. 
agreed  to  be  done  as  having  been  actually  performed,  where 
nothing  has  intervened  which  ought  to  prevent  a  perform- 
ance. This  qualification  of  the  more  concise  and  general 
rule  that  equity  considers  that  to  be  done  which  is  agreed 
to  be  done,  will  comprehend  the  cases  which  come  under 
this  head  [conversion]  of  equity."  2  These  two  principles, 
acting  jointly,  have  given  rise  to  many  of  the  distinctive 
features  of  equity  jurisprudence.  They  are  often  applied  in 
common,  and  the  same  reason  that  exists  for  the  applica- 
tion of  one  may  also  exist  for  the  application  of  the  other. 
By  the  application  of  this  maxim,  courts  of  equity  are  en- 
abled to  disregard  strict  legal  technicalities,  and  to  so  mold 
their  relief  as  to  reach  the  real  merits  of  the  controversy.8 
In  order  to  ascertain  and  carry  out  the  intention  of  the  par- 
ties to  a  transaction,  such  courts  will  look  at  their  situation, 
and  the  attendant  circumstances.4  Equity  will  disregard 

*  Craig  v.  Leslie,  3  Wheat  563,  578,  4  L.  Ed.  460.    Mr.  Pomeroy 
has  said  (Eq.  Jur.  §  378):    "In  fact,  it  is  only  by  looking  at  the  in- 
tent, rather  than  the  form,  that  equity  is  able  to  treat  that  as 
done  which  in  good  conscience  ought  to  be  done.     *     *     *    The  two 
principles  act  together,  and  aid  each  other,  and  it  is  by  their  univer- 
sality and  truth  that  much  of  equity  Jurisprudence  which  is  pecul- 
iar and  distinctive,  in  contrast  with  the  law,  has  been  developed." 

»  Craln  v.  Barnes,  1  Md.  Ch.  151. 

*  Frink  v.  Cole,  10  111.  339;    Nixon's  Heirs  v.  Carco's  Heirs.  28 
Miss.  414;    Llvermore  v.  McNair,  34  N.  J.  Eq.  478;    Lee  T.  Peck- 
ham,  17  Wls.  383.    Where  a  claim  is  vested  on  the  rights  of  a  pur- 
chaser at  a  judicial  sale,  and  It  appears  that  he  was  only  a  nominal 
purchaser,  and  that  the  certificate  of  sale  made  to  him  was  a  mere 
•ham,  and  used  as  a  mere  matter  of  form,  equity  will  look  through 


§    22)  THE    INTENT    RATHER    THAN    TO   THE   FORM.  83 

names,  and  penetrate  disguises,  to  get  at  the  substance  un- 
derneath.6 

Application  of  Maxim  as  Source  of  Doctrines. 

There  are  many  important  equitable  doctrines  which  have 
their  origin  in  the  application  of  this  maxim.  A  few  of  these 
may  be  profitably  mentioned  in  this  connection  for  the  pur- 
pose of  illustrating  the  use  of  the  maxim.  The  equitable 
doctrine  of  forfeitures  and  penalties  is  based  on  this  maxim. 
Where  a  contract  provides  for  the  payment  of  a  stipulated 
sum  of  money,  or,  in  default  thereof,  the  payment  of  a 
greater  sum  as  a  penalty,  courts  of  equity  will  grant  relief 
by  decreeing  a  payment  of  the  amount  due  on  the  contract, 
with  costs  and  interest,  unless,  of  course,  the  defaulting  par- 
ty has,  by  inequitable  conduct,  debarred  himself  from  any 
relief  in  equity.6  In  such  a  case  equity  disregards  the  form 
of  the  contract,  and  gets  at  what  must  have  been  the  intent 
of  the  parties,  in  the  view  of  that  other  maxim  that  equity 
regards  that  as  done  which  ought  to  have  been  done.  And, 
where  a  forfeiture  is  imposed  in  a  contract  for  the  perform- 
ance of  some  act  or  service,  in  case  of  default  a  court  of  eq- 
uity will  disregard  the  arbitrary  forfeiture,  and,  considering 
the  true  intent  of  the  parties  to  be  the  performance  of  such 
act  or  service,  will  relieve  the  defaulting  party  from  such 
forfeiture  if  the  damages  to  the  injured  party  can  be  oth- 
erwise compensated.1 

the  form  of  the  transaction  to  its  substance,  and  will  deny  him  re- 
lief. Beach  v.  Shaw,  57  111.  17. 

»  Stockton  v.  Railroad  Co.,  50  N.  J.  Eq.  73,  24  Atl.  964,  17  L. 
E.  A.  97.  Courts  of  equity  look  behind  the  forms  of  judgments, 
and  inquire  into  the  nature  of  the  demands  on  which  they  are 
founded,  and  the  relation  to  the  parties,  when  necessary  to  the 
preservation  of  equitable  rights.  Meir  v.  Bank,  55  Ohio  St  460,  45 
N.  E.  907. 

«  Relief  from  forfeitures  for  breach  of  covenants  in  leases.  Bow- 
ser v.  Colby,  1  Hare,  109;  White  v.  Warner,  2  Mer.  459;  Palmer  v. 
Ford,  70  111.  369.  And  for  other  cases  see  Peachy  v.  Duke  of  Som- 
erset, 1  Strange,  477;  Id.,  2  White  &  T  Lead.  Cas.  Eq.  1082;  Hagar 
v.  Buck,  44  Vt.  285,  5  Am.  Rep.  368;  Warner  v.  Bennett,  31  Conn. 
468;  Orr  v.  Zimmerman,  63  Mo.  72;  Robinson  v.  Loomis,  51  Pa.  78. 

1 1n  the  case  of  Sloman  v.  Walter,  1  Brown,  Ch.  418, 1  White  &  T. 
Lead.  Cas.  Eq.  1094,  an  injunction  was  issued  to  restrain  a  suit  for 
the  recovery  of  a  penalty  prescribed  in  the  bond,  and  the  chancellor 


84  MAXIMS.  (Oil.   3 

This  maxim  has  also  been  of  great  importance  in  de- 
veloping the  equity  jurisprudence  relating  to  the  character- 
istics of  mortgages,  and  the  rights  of  parties  thereunder. 
Even  at  the  present  time  a  mortgage  is  in  form  a  convey- 
ance, conditioned  to  be  void  on  the  repayment  by  the  mort- 
gagor, on  a  specified  day,  of  the  sum  secured,  with  interest. 
The  common-law  courts,  looking  merely,  at  the  form  of  the 
instrument,  held  the  mortgagee's  estate  indefeasible,  unless 
the  money  was  paid  on  the  very  day  stipulated.  Equity, 
however,  regarding  the  intent  of  the  parties  to  be  the  pay- 
ment of  the  debt,  and  deeming  it  equitable  that  that  should 
be  treated  as  done  which  in  good  conscience  ought  to  be 
done,  permitted  the  mortgagor  to  redeem  after  the  time 
fixed,  on  payment  of  principal  and  interest  then  due.' 

Many  other  equitable  estates  have  arisen  through  the 
application  of  this  important  maxim.  The  common  law,  in 
its  rigid  observance  of  form,  compelled  contracting  parties 
to  obey  absolutely  the  terms  and  stipulations  of  their  valid 
agreements.  "Performance  to  the  very  letter  of  every  cove- 
nant or  promise  was  the  inflexible  rule."  •  Equity  tempered 
the  hardness  of  this  rule,  and,  ever  looking  for  the  meaning 
and  intent  of  the  agreement,  and  ever  striving  to  enforce 
the  performance  of  the  equitable  "ought,"  devised  certain 
equitable  estates  and  liens  which  could  find  no  place  in  the 
common  law.  Thus  it  has  been  held  that  an  absolute  deed, 
taken  as  security  for  a  debt,  is,  in  equity,  a  mortgage.10  And 
where  a  mortgage  is  so  imperfectly  executed  as  to  be  en- 
tirely nugatory  at  law  as  a  valid  mortgage,  equity  will  nev- 

eald:  "The  rule  that  where  a  penalty  Is  Invested  merely  to  secure 
the  enjoyment  of  a  collateral  object,  the  enjoyment  of  the  object 
is  considered  as  the  principal  Intent  of  the  deed,  and  the  pen- 
alty only  as  accessional,  and  therefore  only  to  secure  the  damage 
really  Incurred,  IB  too  strongly  established  In  equity  to  be  shaken." 

•  1  Spence,  Eq.  Jur.  601;    Langford  v.  Barnard,  Toth.  134  (de- 
cided 37  Ellz.);  Emmanuel  College  v.  Evans,  1  Ch.  It.  18. 

•  1  Pom.  Eq.  Jur.  §  370. 

10  Stinchfield  v.  Mllliken,  71  Me.  R67;  Morris  v.  Nixon,  1  How. 
118,  11  L.  Ed.  69;  Russell  v.  Southard,  12  How.  139,  13  L.  Ed.  927; 
Ex  parte  Odell,  10  Ch.  Dlv.  76.  If  a  transaction  resolve  Itself  Into 
a  security,  whatever  may  be  Its  form,  and  whatever  name  the  par- 
ties may  choose  to  give  It,  It  Is  In  equity  a  mortgage.  Flagg  v. 
Mann,  2  Suum.  533,  Fed.  Cas.  No.  4,847. 


§   22)  THE   INTENT    BATHER    THAN    TO    THE    FORM.  86 

ertheless  declare  the  instrument  a  valid  agreement  to  give  a 
mortgage,  and  an  equitable  lien  upon  the  land  will  exist, 
valid  for  all  purposes,  and  as  against  all  persons,  except  a 
purchaser  for  a  valuable  consideration,  and  without  notice.11 
Another  striking  example  of  the  application  of  this  maxim 
by  courts  of  equity  is  in  its  treatment  of  instruments  under 
seal.  At  common  law  a  seal  was  declared  to  be  conclusive 
evidence  of  a  valuable  consideration,  and  to  estop  any  in- 
quiry into  its  existence.12  Equity,  looking  at  the  intent, 
rather  than  the  form,  disregarded  the  presence  of  a  seal, 
and  always  permitted  evidence  to  be  adduced  as  to  whether 
there  was  an  actual  consideration.  In  the  same  manner  a 
court  of  equity  refused  to  be  bound  by  the  common-law  rule 
that  a  sealed  instrument  could  only  be  discharged  by  a  writ- 
ing under  seal,  and  would  afford  the  obligor  such  relief  as 
the  circumstances  might  demand,  frequently  in  the  nature  of 
an  injunction  to  compel  the  obligee  to  deliver  up  or  cancel 
the  sealed  instrument.18  The  maxim  has  also  been  held  to 
be  specially  applicable  in  cases  of  suretyship,  with  respect 
to  which,  whatever  may  be  the  form  of  the  instrument,  or  the 
obligation  of  the  parties  on  its  face,  a  court  of  equity  always 
inquires  into  the  real  nature  and  objects  of  the  transaction, 
and  affords  relief  accordingly.14  But  the  maxim  does  not 
apply  alone  to  carry  out  the  true  intent  of  the  parties  to  a 
contract.  It  applies  as  well  to  frustrate  that  intent  when- 
ever it  contravenes  the  laws  of  the  state,  and  the  parties  have 
adopted  some  specious  form  to  disguise  it.  In  such  cases 
'equity  will  strip  off  the  disguise,  and,  if  necessary  to  the  ends 
of  justice,  cancel  the  contract.18  It  would  be  useless  to  at- 

«  Love  v.  Mining  Co.,  32  Cal.  639,  654,  91  Am.  Dec.  602.  See, 
also,  Munds  vr  Cassidey,  98  N.  O.  558,  4  S.  B.  363,  355;  Sparks  v. 
Steel  Co.,  87  Ala.  294,  6  South.  195;  Dreutzer  v.  Lawrence,  58  Wis. 
594,  17  N.  W.  423. 

12  This  doctrine  is  no  longer  in  force  in  courts  of  common  law, 
and  actual  consideration  or  want  thereof,  as  the  case  may  be,  must 
be  shown.  Burling  v.  King,  66  Barb.  (N.  Y.)  633;  In  re  Webb's 
Estate,  49  Cal.  541,  545;  Minturn  v.  Seymour,  4  Johns.  Ch.  (N.  Y.) 
497;  Wason  v.  Colburn,  99  Mass.  342. 

'  is  Cross  v.  Sprigg,  6  Hare,  552;   Hurlbut  v.  Phelps,  30  Conn.  42; 
Kidder  v.  Kidder,  33  Pa.  268. 

i*  Dodd  v.  Wilson,  4  Del.  Ch.  114,  409. 

»6  Stockton  v.  Railroad  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964.    A  statute 


86  MAXIMS.  (Ch.  3 

tempt,  in  this  connection,  an  exhaustive  enumeration  of  the 
applications  of  this  maxim.  As  has  been  intimated,  it  lies 
at  the  foundation  of  almost  every  equitable  estate  and  doc- 
trine. This  may  be  shown  in  the  proper  place  under  discus- 
sions hereinafter  in  respect  to  these  estates  and  doctrines. 

23.    Equity   imputes  an  intent  to  fulfill  an  obliga- 
tion. 

Where  a  man  is  bound  to  do  an  act,  and  he  does  that 
which  may  be  considered  as  done  in  whole  or  partial  fulfill- 
ment of  his  obligation,  such  shall  be  construed  to  be  his  in- 
tention. This  is  so  because  it  is  right  to  put  the  most  favor- 
able construction  on  the  acts  of  others,  and  to  presume  that 
a  person  intended  to  do  right,  rather  than  wrong ;  to  act  con- 
scientiously, rather  than  in  bad  faith ;  and  even  to  be  just 
before  he  is  generous.1  This  maxim  is  especially  applicable 
to  cases  arising  from  the  performance  or  satisfaction  of  ex- 
press covenants ;  as,  where  a  husband  covenants  to  settle 
on  his  wife  a  certain  sum,  to  be  expended  by  trustees  in  the 
purchase  of  lands  in  a  certain  county,  and  he  never  pays  the 
money  to  the  trustees,  but  himself  purchases  lands  in  such 
county,  takes  a  conveyance  to  himself  in  fee  simple,  and  aft- 
erwards dies  intestate,  such  lands  will  be  deemed  as  purchas- 
ed by  the  husband  in  pursuance  of  the  settlement,  and  will  be 
liable  to  the  terms  thereof.1  And  where  a  person  in  a  fiduci- 

of  New  Jersey  prohibited  the  leasing  of  the  property  of  a  domestic 
railroad  to  a.  foreign  corporation.  A  lease  was  executed  to  a  finan- 
cially Irresponsible  domestic  company,  and  the  lease  was  guarantied 
by  a  wealthy  foreign  company.  The  court,  disregarding  the  mere 
form,  held  the  transaction  to  be  a  lease  to  the  foreign  company, 
and  the  guaranty  to  be  a  mere  device  to  evade  the  statute.  See, 
also,  Pennsylvania  R.  Co.  v.  Com.  (Pa.  Sup.)  7  Atl.  368,  where  an- 
other device  to  evade  a  statute  prohibiting  the  lease  of  competing 
railroads  was  disregarded. 

5  23.  i  Snell,  Eq.  p.  45;  1  Pom.  Eq.  Jur.  §  420;  Lechmere  v.  Lech- 
mere,  3  P.  Wms.  211;  Streatfleld  v.  Streatfleld,  1  White  &  T.  Lead. 
Cas.  Eq.  399;  Blandy  v.  Widrnore,  2  White  &  T.  Lead.  Cas.  Eq.  428. 

»  Sowden  v.  Sowden,  1  Brown,  Ch.  682.  And  see  post,  c.  9.  See, 
also.  Wilcocks  v.  Wllcocks.  2  Vern.  558.  2  White  &  T.  Lead.  Cas. 
Eq.  (4th  Am.  Ed.)  833.  Where  a  person  having  no  real  estate  cove- 
nants to  convey  and  settle  lauds,  and  afterwards  he  purchases, 


§   23)        EQUITY  IMPUTES  INTENT  TO  FULFILL  OBLIGATION.  87 

ary  capacity — as  a  trustee,  executor  or  administrator,  guard- 
ian or  committee,  director  or  manager  of  a  corporation,  agent, 
or  partner  in  control  of  partnership  funds — purchases  proper- 
ty, either  real  or  personal,  with  trust  funds  in  his  hands,  and 
takes  the  title  thereto  in  his  own  name,  without  any  declar- 
ation of  the  trust,  he  will  be  deemed  to  have  purchased  for 
the  benefit  of  the  cestuis  que  trustent,  and  as  to  such  prop- 
erty he  will  still  be  deemed  a  trustee.  Equity  will  impute  to 
the  trustee  an  intent  to  conscientiously  fulfill  his  obligations 
as  such  trustee,  and  will  not  assume  that  he  intended  to  vio- 
late his  fiduciary  duties.8  But  the  money  paid  by  the  trustee 
for  the  property  purchased  must  be  identified  as  trust  mon- 
eys.4 In  a  rather  recent  leading  case  in  England,  the  prin- 
ciple was  carried  still  further.  It  was  held  that,  where  one 
holding  money  in  a  fiduciary  capacity  mingles  it  with  his 
own,  and  draws  out  of  the  mixed  fund,  equity  will  presume 
that  he  is  rightfully  drawing  out  his  own  money,  rather  than 
that  he  is  drawing  out  the  trust  funds  in  violation  of  his 
trust ;  and  it  was  accordingly  held,  contrary  to  the  general 
rule  applying  the  first  drawings  to  the  first  deposits,  that  the 
unexpended  balance  was  subject  to  a  charge  for  the  entire 
amount  of  the  trust  funds.5 

but  does  not  convey  and  settle,  he  will  be  deemed  to  have  pur- 
chased for  the  purpose  of  fulfilling  his  obligation,  and  the  lands 
thus  purchased  will  be  treated  as  subject  to  the  covenants.  Deacon 
v.  Smith,  3  Atk.  323;  Wellesley  v.  Wellesley,  4  Mylne  &  C.  581. 

»  As  to  trustees,  see  Schlaefer  v.  Corson,  52  Barb.  (N.  Y.)  510; 
Day  v.  Roth,  18  N.  Y.  448;  Ferris  v.  Van  Vechten,  73  N.  Y.  113; 
McLarren  v.  Brewer,  51  Me.  402.  As  to  partners,  see  Homer  v. 
Homer,  107  Mass.  85;  Jenkins  v.  Frink,  30  Cal.  586,  89  Am.  Dec. 
134;  Oliver  v.  Piatt,  3  How.  401,  11  L.  Ed.  622.  As  to  guardians 
and  committees,  see  Bancroft  v.  Consen,  13  Allen  (Mass.)  50;  John- 
son v.  Dougherty,  18  N.  J.  Eq.  406;  Reid  v.  Fitch,  11  Barb.  (N.  Y.) 
399.  As  to  executors  or  administrators,  see  Stow  v.  Kimball,  28 
111.  93;  White  v.  Drew,  42  Mo.  561.  As  to  directors  of  corporations?, 
see  Robb's  Appeal,  41  Pa.  45;  Bridenbecker  v.  Lowell.  32  Barb.  (N. 
Y.)  10. 

<  Ferris  v.  Van  Vechten,  73  N.  Y.  113. 

»In  re  Hallett's  Estate,  13  Ch.  Dlv.  696,  727,  745,  followed  In 
Central  Nat  Bank  v.  Insurance  Co.,  104  U.  S.  54,  26  L,  Ed.  693; 
Englar  v.  Offutt,  70  Md.  78,  86,  16  AtL  4»7. 


83  MAXIMS.  (Ch.  3 


EQUITY  ACTS  IN  PEBSONAM. 

24.  Equity  acts  in  personam.  The  force  and  ef- 
fect of  this  maxim  has  been  modified  by 
statute  in  most  of  the  states,  so  that  a  de- 
cree of  a  court  of  equity  operates,  -when 
necessary,  as  a  transfer  of  title  to  real  es- 
tate; and,  -whenever  such  decree  merely  di- 
rects the  payment  of  money,  it  may  be  en- 
forced by  execution  against  the  property  of 
the  unsuccessful  party  in  the  same  manner 
as  a  judgment  at  law. 

This  is  a  maxim  descriptive  of  the  procedure  in  a  court  of 
equity,  and  is  not,  perhaps,  in  any  other  respect  a  maxim  or 
principle  of  equity  itself.  A  decree  of  a  court  of  equity  did 
not,  by  its  own  force,  vest  in  a  party  in  whose  favor  it  was 
granted  a  legal  estate,  interest,  or  right  to  which  he  was  de- 
clared to  be  entitled,  nor  could  it  transfer  a  legal  right  or  title 
from  one  party  to  another.  Such  decree  was  a  personal  de- 
mand that  the  defendant  perform  as  therein  directed,  but  the 
personal  act  of  the  defendant  was  necessary  to  complete  the 
relief  which  had  been  granted  the  plaintiff  by  such  decree. 
Such  decrees  were  enforceable  by  attachment  against  the 
person,  or  by  process  of  contempt,  under  which  the  party 
failing  to  obey  the  decree  was  arrested  and  imprisoned  until 
he  yielded  obedience,  or  purged  the  contempt  by  showing 
that  the  disobedience  was  not  willful,  but  the  result  of  in- 
ability, not  produced  by  his  own  fault  or  contumacy.1  Un- 
der existing  state  statutes  decrees  of  courts  of  equity  are 
themselves,  in  many  instances,  directly  enforceable  against 
the  property  of  the  defendant,  and  of  themselves  or  by  offi- 
cers of  the  court  convey  the  estate  or  afford  the  relief 
sought,  without  the  necessity  of  personal  action  on  the  part 
of  the  defendant ;  but  these  statutes  are  only  in  force  with- 

I  24.  i  Clements  v.  Tillman,  79  Ga.  451,  5  8.  B.  194;  Dickinson 
T.  Hoomea'  Adm'r.  8  Grat  (Va.)  410;  Pain  v.  Pain,  80  N.  C.  322, 


§    24)  EQUITY    ACTS    IN    PERSONAM.  89 

in  the  boundaries  of  the  states  where  enacted.2  The  United 
States  courts  are  unaffected  by  such  statutes,  and,  in  the  ab- 
sence of  legislation  by  congress,  the  ordinary  doctrine  as  to 
the  effect  of  remedies  and  decrees  in  equity  is  still  in  oper- 
ation.3 Notwithstanding  the  various  state  statutes  provid- 
ing that  decrees  in  equity  apply  to  and  are  enforceable  in 
rem,  many  equitable  remedies  exist  which  are  unaffected  by 
the  change,  and  still  retain  their  personal  character.  Acting 
directly  on  the  conscience  and  person,  equity  will  not  permit 
an  unconscientious  or  oppressive  use  of  the  common  or  stat- 
ute law.  This  principle  may  be  illustrated  by  the  case  of  a 
devise  of  certain  lands  secured  by  a  person  by  wrongful  and 
fraudulent  misrepresentations  made  by  him  to  the  testator. 
In  equity  the  fraud  of  the  devisee  should  not  be  permitted 
to  succeed.  But  the  statute  relating  to  the  execution  of 
wills  is  peremptory,  and  equity  will  not  disregard  it.  But, 
directing  its  decree  to  the  conscience  of  the  devisee,  equity 
prevents  his  holding  the  title  of  the  devised  lands  for  his 
own  benefit,  and  compels  him  to  hold  them  for  the  benefit 
of  the  person  to  whom  they  equitably  belong.4  So,  one  who 
enters  into  a  parol  agreement  for  the  sale  of  land,  on  the 
faith  of  which  the  vendee  takes  possession,  and  makes  ex- 
penditures and  improvements,  will  be  compelled  in  equity  to 

2  Langdon  v.  Sherwood,  124  U.  S.  74,  81,  8  Sup.  Ct.  429,  31  L. 
Ed.  344;  Arndt  v.  Griggs,  134  U.  S.  316,  10  Sup.  Ct  557,  33  L.  Ed. 
918. 

»  Hart  v.  Sansom,  110  U.  S.  155,  3  Sup.  Ct.  586,  28  L.  Ed.  101,  in 
which  the  rule  that  equity  acts  in  personam  is  examined,  and  dis- 
cussed at  length.  See,  also,  Watkins  v.  Holman,  16  Pet  25,  26,  10 
L.  Ed.  873;  Tardy  v.  Morgan,  3  McLean,  358,  Fed.  Gas.  No.  13,752; 
Briggs  v.  French,  1  Suinn.  504,  Fed.  Cas.  No.  1,870;  JMassie  v. 
Watts,  6  Cranch,  148,  3  L.  Ed.  181. 

«  Lord  Westbury,  in  McCormick  v.  Grogan,  L.  R.  4  H.  L.  82,  97, 
•ays:  "The  court  of  equity  has,  from  a  very  early  period,  decided 
that  even  an  act  of  parliament  shall  not  be  used  as  an  instrument 
of  fraud;  and  If,  in  the  machinery  of  perpetrating  a  fraud,  an  act 
of  parliament  intervenes,  the  court  of  equity,  it  is  true,  does  not  set 
aside  the  act  of  parliament  but  it  fastens  on  the  individual  who 
gets  a  title  under  that  act,  and  imposes  on  him,  a  personal  obliga- 
tion, because  he  applies  the  act  as  an  instrument  for  accomplish- 
ing a  fraud.  In  this  way  the  court  of  equity  has  dealt  with  the 
statute  of  wills  and  the  statute  of  frauds." 


90  MAXIMS.  (Ch.  3 

execute  a  deed,  notwithstanding  the  statute  of  frauds.6  In 
such  case,  also,  equity  does  not  act  in  contravention  of  the 
statute,  but  imposes  on  the  individual  seeking  to  use  it  as 
an  instrument  of  fraud  a  personal  obligation  to  hold  the 
land  for  the  vendee's  benefit.  And  any  wrongful  act  threat- 
ened by  a  defendant  may  be  restrained  by  a  personal  decree 
against  him.  Relief  by  injunction,  in  its  very  nature,  depends 
for  its  efficacy  upon  the  principle  that  equity  acts  in  per- 
sonam,  and  not  in  rem.  Thus,  equity  will  enjoin  an  indi- 
vidual from  maintaining  unconscientious  proceedings  in 
common-law  courts,  and  will  punish  disobedience  of  its  or- 
ders by  imprisonment.* 

Jurisdiction  of  Person. 

The  statutes  of  the  several  states  have  not  deprived  courts 
of  equity  of  their  power  to  act  in  personam.  If  the  subject- 
matter  of  the  controversy  is  in  another  state  or  country,  and 
without  the  territorial  jurisdiction  of  such  courts,  equitable 
remedies  may  be  granted  which  affect  the  person  of  either 
party,  provided  such  party  is  within  the  jurisdiction  of  such 
courts.  An  equitable  decree  may  be  rendered,  directed  to 
either  party,  compelling  or  restraining  the  performance  of 
an  act  respecting  a  subject-matter  which  is  beyond  the  ter- 
ritorial jurisdiction  of  a  court  of  equity.7  Hence  equitable 
remedies  may  be  employed  by  a  court  of  equity  in  personam 
against  all  persons  within  its  jurisdiction  for  relief  against 
fraud,  for  the  settlement  of  a  partnership,  the  performance  of 
a  contract,  or  any  other  similar  purpose,  even  if  the  subject- 

•  1  Pom.  Eq.  Jur.  §  430. 

«  Earl  of  Oxford's  Case,  1  Ch.  R.  1,  2  White  &  T.  Lead.  Cas.  Eq. 
642;  Marine  lus.  Co.  v.  Hodgson,  7  Cranch,  332.  3  L.  Ed.  302;  Maps 
v.  Cooper,  39  N.  J.  Eq.  31G;  Texas  &  P.  Ry.  Co.  v.  Kuteman,  54 
Fed.  547,  4  C.  C.  A.  503.  The  Injunction  operates  on  the  parties, 
and  not  on  the  court  of  law;  and  hence,  if  it  proceeds  with  the 
action,  its  Judgment  is  not  void.  Platt  v.  Woodruff,  61  N.  Y.  378. 

f  Adams  v.  Messlnger,  147  Mass.  185,  17  N.  E.  491.  In  this  case 
an  agreement  between  an  inventor  and  an  assignee  of  a  patent, 
binding  the  inventor  to  patent  certain  improvements  in  Canada 
whenever  such  a  patent  was  secured  in  the  United  States,  was  held 
capable  of  specific  performance  in  Massachusetts.  Where  a  court 
of  equity  has  Jurisdiction  of  the  parties.  It  n^ay  compel  them  to  do 
equity  in  relation  to  lands  located  without  Its  jurisdiction.  Gard- 
ner v.  Ogden,  22  N.  Y.  327,  333. 


§    24)  EQUITY    ACTS    IN    PERSONAM.  91 

matter  is  without  its  jurisdiction.*  It  has  been  frequently 
held,  both  in  this  country  and  England,  that  a  court  of  equity 
has  power  to  restrain  a  person  within  its  jurisdiction  from 
prosecuting  an  action  in  a  foreign  court.*  In  this  connection 
Judge  Story  says :  "When  both  parties  to  a  suit  in  a  foreign 
country  are  residents  within  the  territorial  limits  of  another 
country,  the  courts  of  equity  in  the  latter  may  act  in  per- 
sonam  upon  these  parties,  and  direct  them  by  injunction  to 
proceed  no  further  in  such  suit.  In  such  case  these  courts 
act  upon  acknowledged  principles  of  public  law  in  regard  to 
jurisdiction.  They  do  not  pretend  to  direct  or  control  the 
foreign  court,  but,  without  regard  to  the  situation  of  the 
subject-matter  of  the  suit,  they  consider  the  equities  between 
the  parties,  and  decree  in  personam  according  to  those  equi- 
ties ;  and  enforce  obedience  to  their  decrees  by  process  in 
personam."  10  And  in  a  proper  case  the  court  will  restrain 
a  party  from  leaving  its  jurisdiction,  although  this  is  a  reme- 

•  Jurisdiction  of  equity  In  case  of  fraud  is  sustainable  wherever 
the  person  sought  to  be  affected  is  reached,  even  if  land  affected 
by  the  decree  is  without  the  jurisdiction  of  the  court.  De  Klyn  v. 
Watkins,  3  Sandf.  Ch.  (N.  Y.)  185;  Davis  v.  Morriss'  Ex'rs,  76  Va. 
21.  Payment  of  legacy  from  lands  without  the  jurisdiction.  Lewis 
v.  Darling,  16  How.  1,  14  L.  Ed.  819.  In  the  case  of  Massie  v. 
Watts,  6  Cranch,  148,  3  L.  Ed.  181,  Chief  Justice  Marshall,  after 
reviewing  all  the  leading  English  cases,  concludes  by  holding  that 
in  case  of  fraud,  of  trust,  or  of  contract  the  jurisdiction  of  a  court 
of  chancery  is  sustainable  wherever  the  person  be  found,  although 
lands  not  within  the  jurisdiction  of  that  court  may  be  affected  by 
the  decree. 

»  Portarlington  v.  Soulby,  3  Mylne  &  K.  104;  Mackintosh  v.  Og- 
ilvie,  3  Swanst.  365,  note;  Carron  Iron  Co.  v.  Maclaren,  5  H.  L. 
Cas.  416,  445;  Hutton  v.  Hutton,  40  N.  J.  Eq.  461,  2  Atl.  280;  Cole 
v.  Cunningham,  133  U.  S.  107,  10  Sup.  Ct.  269,  33  L.  Ed.  538;  Dehon 
v.  Foster,  4  Allen  (Mass.)  545,  550.  Injunction  against  proceedings 
in  another  state  to  attach  exempt  property.  Snook  v.  Snetzer,  25 
Ohio  St  516;  Wilson  v.  Joseph,  107  Ind.  490,  8  N.  E.  616;  Allen  v. 
Buchanan  (Ala.)  11  South.  777.  See,  also,  Dale  v.  Roosevelt,  5  Johns. 
Ch.  (N.  Y.)  174  (where  Chancellor  Kent  granted  an  injunction  to 
restrain  suit  upon  an  agreement  relating  to  lands  in  Ohio);  Pickett 
v.  Ferguson,  45  Ark.  177,  55  Am.  Rep.  545;  Great  Falls  Co.  v. 
Worster,  15  N.  H.  412;  Proctor  v.  Bank,  152  Mass.  223,  25  N.  E.  81, 
9  L.  R.  A.  122;  Wilson  v.  Joseph,  107  Ind.  490,  8  N.  E.  616. 

10  Story,  Eq.  Jur.  §  899;  High,  Inj.  §§  103-107. 


92  MAXIMS.  (Ch.  3 

dy  which  at  the  present  time  is  little  used.11  It  seems  now 
well  established  that  a  court  of  chancery,  having  jurisdiction 
of  the  party  in  whom  the  legal  title  to  the  land  in  controver- 
sy is  vested,  may,  by  its  process  of  attachment  and  injunc- 
tion, compel  him  to  do  justice  by  the  execution  of  such  con- 
veyances and  assurances  as  will  affect  the  title  of  the  prop- 
erty in  the  jurisdiction  where  it  is  situated.1*  In  general, 
the  fact  that  the  property  is  not  within  the  jurisdiction  con- 
stitutes no  bar  to  a  proceeding  in  a  court  of  equity,  if  the 
person  is  within  the  jurisdiction,  for  a  court  of  equity  acts 
upon  the  person ;  or,  to  use  the  appropriate  phrase,  "JEqui- 
tas  agit  in  personam."  "  But  the  claim,  to  affect  foreign 

»i  Enos  v.  Hunter,  9  111.  211;  Denton  v.  Denton,  1  Johns.  Ch.  (N. 
T.)  364;  Porter  v.  Spencer,  2  Johns.  Ch.  (N.  Y.)  169;  Griswold  v. 
Hazard,  141  U.  S.  260,  11  Sup.  Ct  972,  35  L.  Ed.  678;  Bankr.  Act 
1898,  §  7,  subd.  6. 

12  Gardner  v.  Ogden,  22  N.  T.  327,  339,  citing  Mead  v.  Merritt, 
2  Paige  (N.  Y.)  402;  Mitchell  v.  Bunch,  Id.  606,  22  Am.  Dec.  669; 
Sutphen  v.  Fowler.  9  Paige  (N.  Y.)  280;  Shattuck  v.  Cassidy,  3 
Edw.  Ch.  (N.  Y.)  152;  Newton  v.  Bronson,  13  N.  Y.  587,  67  Am.  Dec. 
89.  And  see  Bailey  v.  Ryder,  10  N.  Y.  363.  The  circumstances  that 
the  real  property  constituting  the  subject-matter  of  the  contract 
was  situated  In  another  state  presents  no  obstacle  to  the  Jurisdic- 
tion. Sloan  v.  Baird,  162  N.  Y.  327,  331,  56  N.  E.  752.  See,  also, 
Massie  v.  Watts,  6  Cranch,  148,  3  L.  Ed.  181. 

i«  Story,  Eq.  PI.  8  489.  And  see  Penn  v.  Baltimore,  2  White  & 
T.  Lead.  Cas.  Eq.  1047.  Conveyance  of  land  may  be  decreed,  Mullet 
v.  Dows,  94  U.  S.  444,  24  L.  Ed.  207.  If  the  parties  in  an  action 
for  a  specific  performance  are  within  the  Jurisdiction  of  the 
court,  the  fact  that  the  subject-matter  Is  without  such  Juris- 
diction is  immaterial.  Burrell  v.  Root,  40  N.  Y.  496;  Brown 
v.  Desmond,  100  Mass.  267.  Courts  of  equity  In  England  are, 
and  always  have  been,  courts  of  conscience,  operating  In  per- 
sonnm,  and  not  In  rem;  and  in  the  exercise  of  this  personal  ju- 
risdiction they  have  always  been  accustomed  to  compel  the  per- 
formance of  contracts  and  trusts  as  to  subjects  which  are  not  either 
locally  or  rntione  domicilii  within  their  jurisdiction.  Lord  Sel- 
borne.  In  Ewlng  v.  Ewlng,  9  App.  (Jus.  34;  Id.,  Brett's  Lead. 
Cas.  Mod.  Eq.  234.  And  see  the  following  American  cases:  Guild 
T.  Guild,  16  Ala.  121;  McGee  v.  Sweeney,  84  Cal.  100,  23  Pac.  1117; 
Montgomery  v.  U.  S.  (C.  C.)  36  Fed.  4;  Carver  v.  Peck,  131  Mass. 
292;  Bethell  v.  Bethell,  92  Ind.  318;  Johnson  v.  Gibson,  116  111. 
294,  6  N.  E.  205;  Polndexter  v.  Burwell,  82  Va.  507;  Allen  v.  Bu- 
chanan. 97  Ala.  399.  11  South.  777;  Cooley  v.  Scarlett,  38  111.  316,  87 
Am.  Dec.  298;  Harris  v.  Pullman,  84  111.  20,  25  Am.  Rep.  416.  A 
party  within  the  Jurisdiction  of  a  court  of  equity  may  be  compelled. 


§    24)  EQUITY    ACTS    IN   PERSONAM.  93 

lands  through  the  person  of  the  party,  must  be  strictly  limit- 
ed to  those  cases  in  which  the  relief  decreed  can  be  entire- 
ly obtained  through  the  party's  personal  obedience.14  If  the 
relief  sought  is  such  that  it  must  act  directly  upon  specific 
property  located  without  the  court's  jurisdiction,  and  not 
upon  the  person  of  the  defendant,  the  suit  must  be  brought 
where  the  property  is  situated.  As,  for  instance,  a  suit  can- 
not be  entertained  to  determine  or  affect  the  title  to  lands 
situated  in  another  state.18  Nor  will  equity  decree  partition 
of  land  situated  in  a  foreign  state  or  country,  because  no 
power  could  be  given  to  commissioners  to  go  there,  and  take 
the  steps  necessary  for  carrying  out  the  decree.16  A  suit  to 
foreclose  a  mortgage  on  lands  situated  beyond  the  territo- 
rial jurisdiction  of  a  court  of  equity  cannot  be  maintained.17 
But  it  is  a  settled  law  that  a  decree  of  foreclosure,  and  a  sale 
of  the  entire  mortgaged  property,  is  valid,  although  part  of 
the  mortgaged  property  lies  without  the  territorial  jurisdic- 
tion of  the  court  within  which  the  suit  was  brought.18  Eq- 

under  certain  circumstances,  to  transfer  title  to  real  property  in 
another  state.  Baker  v.  Rockabrand,  118  111.  365,  8  N.  B.  456. 

i«  Westl.  Priv.  Ink  Law,  64,  65. 

IB  Northern  Indiana  R.  Co.  v.  Railroad  Co.,  15  How.  233,  14  L. 
Ed.  674;  Massie  v.  Watts,  6  Cranch,  148,  3  L.  Ed.  181;  Lindley  v. 
O'Reilly,  50  N.  J.  Law,  636,  640,  15  Atl.  379,  1  L.  R.  A.  79;  Carpen- 
ter v.  Strange,  141  U.  S.  106,  11  Sup.  Ct.  960,  35  L.  Ed.  640. 

i«  Cart  wright  v.  Pettus,  2  Ch.  Cas.  214;  Poindexter  v.  Bur  well, 
82  Va.  507;  Wimer  v.  Wimer,  Id.  890,  3  Am.  St.  Rep.  126. 

if  Farmers'  Loan  &  Trust  Co.  v.  Telegraph  Co.,  55  Conn.  334,  11 
Atl.  184,  3  Am.  St.  Rep.  53. 

is  Muller  v.  Dows,  94  U.  S.  444,  24  L.  Ed.  207,  where  Mr.  Justice 
Strong  said:  "Without  reference  to  the  English  chancery  decisions, 
where  this  objection  to  the  decree  would  be  quite  untenable,  we 
think  the  power  of  a  court  of  chancery  in  this  country  is  sufficient  to 
authorize  such  a  decree  as  was  here  made.  It  is  here  undoubtedly 
a  recognized  doctrine  that  a  court  of  equity,  sitting  in  a  state,  and 
having  jurisdiction  of  the  person,  may  decree  a  conveyance  by  him 
of  land  in  another  state,  and  may  enforce  the  decree  by  process 
against  the  defendant.  True,  it  cannot  send  its  process  into  an- 
other state,  nor  can  It  deliver  possession  of  land  in  another  juris- 
diction; but  it  can  command  and  enforce  a  transfer  of  the  title. 
And  there  seems  to  be  no  reason  why  it  cannot,  in  a  proper  case, 
effect  the  transfer  by  the  agency  of  trustees  when  they  are  com- 
plainants." See,  also,  McElratb,  v.  Railroad  Co.,  55  Pa.  189;  White 
v.  Hall,  12  Ves.  321;  MacGregor  v.  MacGregor,  9  Iowa,  65.  And  see 


94  MAXIMS.  (Ch.  3 

uity  will  not,  however,  entertain  jurisdiction  of  an  action  to 
recover  proceeds  of  the  sale  of  real  estate  situated  in  a  for- 
eign country,  where  title  to  the  property  is  in  dispute.1* 


25.     Equity  acts  specifically,   and  not  by  way  of 
compensation. 

Equity  attempts  to  place  the  parties  in  the  position  which 
they  ought  to  occupy  by  decreeing  specifically  that  each 
party  be  given  the  rights  which  he  ought  to  enjoy,  and  put- 
ting an  end  to  the  wrongs  of  which  either  party  may  be 
guilty.  With  few  exceptions,  courts  of  law  can  only  direct 
the  payment  of  a  sum  of  money  as  compensation  for  injuries 
suffered  by  either  party,  and  cannot  prevent  the  repetition 
of  the  injuries.  As  will  thus  be  seen,  this  maxim  illustrates 
the  great  difference  in  the  jurisdiction  of  equity  and  law.1 
It  is  the  embodiment  of  a  general  principle  running  through 
the  whole  system  of  equity  jurisprudence.  To  illustrate  this 
maxim  it  will  only  be  necessary  to  refer  to  a  few  equitable 
doctrines  and  remedies.  Thus  equity  will  compel  a  contract 
to  be  specifically  performed,  instead  of  awarding  damages 
for  its  breach.  Where  a  mistake  has  been  made  in  a  written 
instrument,  or  the  instrument  itself  has  been  lost  or  destroy- 
ed, equity,  acting  specifically,  will  place  the  parties  in  the 
same  situation  as  though  the  mistake  or  loss  had  not  oc- 
curred, by  decreeing  a  reformation  in  the  one  case  and  a  re- 
execution  in  the  other. 

Bankr.  Act  1898,  §  7,  subd.  5,  compelling  bankrupt  to  make  convey- 
ance to  his  trustee. 

i»  In  re  Hawthorne,  23  Ch.  Dlv.  745. 

i  25.  i  Snell,  Eq.  Jur.  p.  47. 


§§   2G-27)  PENALTIES    AND    FORFEITURES.  95 

CHAPTER  IV. 

PENALTIES  AND  FORFEITURES. 

26-27.  Doctrine  Relative  to  Penalties  and  Forfeiture*. 

28-29.  Definitions. 

30.  Grounds  for  Relief. 

81.  Liquidated  Damages. 

82.  Rules  Governing  the  Determination  as  to  Liquidated  Dam- 

ages or  Penalty. 

83.  Enforcing  Forfeitures. 

84.  When  Equity  Will  Relieve  Against  Forfeitures. 

85.  Statutory  Penalties  and  Forfeitures. 

DOCTRINE    RELATIVE   TO     PENALTIES    AND   FOR- 
FEITURES. 

26.  Whenever  a  penalty  or  forfeiture    is  inserted 

in  a  contract  merely  to  secure  the  perform- 
ance of  some  act,  or  the  enjoyment  of  some 
right  or  benefit,  such  performance  or  en- 
joyment is  the  substantial  and  principal  in- 
tent of  the  parties  to  the  contract,  and  the 
penalty  or  forfeiture  is  only  accessory 
thereto. 

27.  Equity    -will    not    enforce,   but    will     relieve 

against,  such  penalty  or  forfeiture  upon  pay- 
ment by  the  party  subjected  thereto  of  the 
amount  due,  with  interest,  or  of  damages 
proportionate  to  the  injury  occasioned  by 
a  failure  to  perform  the  act  or  secure  the  en- 
joyment of  the  right  or  benefit. 

The  doctrine  was  originally  applied  to  those  cases  where 
the  penalty  or  forfeiture  was  for  the  purpose  of  enforcing 
the  payment  of  a  sum  of  money ;  but  later  the  doctrine  was 
extended  to  cases  where  the  penalty  or  forfeiture  was  used 


96  PENALTIES    AND    FORFEITURES.  (Ch.  4 

to  secure  the  performance  of  a  specific  act,  or  the  enjoy- 
ment of  some  right  or  benefit.  It  is  now  a  general  principle, 
to  be  applied  in  all  courts  of  equity,  that  equity  will  relieve 
where  a  penalty  is  forfeited,  if  the  case  admits  of  a  certain 
compensation ;  and  the  true  foundation  of  such  relief  is  that, 
when  penalties  are  designed  only  to  secure  money  or  dam- 
ages really  incurred,  if  the  party  obtains  his  money  or  dam- 
ages, he  gets  all  that  he  expected  or  required.1  The  doc- 
trine, as  we  have  seen,  rests  on  the  maxim  that  equity  looks 
at  the  intent,  rather  than  the  form,  of  a  transaction.2  The 
common  law  has  followed  equity,  and  now  in  most  states,  in 
a  great  variety  of  cases,  relief  may  be  had  in  common-law 
courts  against  penalties  and  forfeitures.* 

§§  26-27.  i  Skinner  v.  Dayton,  2  Johns.  Ch.  (N.  Y.)  526,  535, 
citing  Sanders  v.  Pope,  12  Ves.  282;  Davis  v.  West,  Id.  475.  And 
see  Livingston  v.  Tompkins,  4  Johns.  Ch.  (N.  Y.)  432,  8  Am.  Dec. 
598,  where  the  court  says:  "It  may  be  laid  down  as  a  fundamental 
doctrine  of  the  court  that  equity  does  not  assist  the  recovery  of  a 
penalty  or  forfeiture,  or  anything  In  the  nature  of  a  forfeiture." 
Followed  in  Marshall  v.  Mayor,  etc.,  of  City  of  Vicksburg,  16  Wall. 
146,  149,  21  L.  Ed.  121. 

a  Peachy  v.  Duke  of  Somerset  1  Strange,  447;  Sloman  y.  Walter, 
1  Brown,  Ch.  418.  "Accident  Is  undoubtedly  the  origin  of  the  ju- 
risdiction of  chancery  upon  the  subject  of  penalties,  but  subse- 
quently the  Jurisdiction  was  extended  to  embrace  all  questions  as 
to  penalties  irrespective  of  accident."  Bisp.  Eq.  §  178,  citing  1 
Spence,  Eq.  629,  630.  Story  says  that  it  is  highly  probable  that 
relief  was  first  granted  in  such  cases  upon  the  ground  of  accident, 
or  mistake,  or  fraud.  Story,  Eq.  Jur.  §  1313.  But  Pomeroy  does 
not  concur  In  this  view  of  the  origin  of  this  relief.  The  doctrine 
has  a  deeper  foundation  In  universal  principles  of  right,  and  is 
grounded  In  the  maxim  that  equity  looks  to  the  intent,  rather  than 
to  the  form.  Pom.  Eq.  Jur.  §§  378,  381,  433,  note. 

»  Statutes  In  England  have  rendered  It  unnecessary  for  equity 
to  relieve  from  a  penalty,  by  providing  that  a  debtor  should  be  dis- 
charged, In  every  case,  from  his  obligation,  on  payment  of  principal, 
interest,  and  costs.  8  &  9  Wm.  III.  c.  11,  and  4  &  5  Anne,  c.  16,  f§ 
12,  13.  Similar  statutes  are  in  force  in  the  several  states  In  this 
country.  But  the  Jurisdiction  of  a  court  of  chancery  to  Interfere 
Btill  exists.  Ewlng  y.  Litchfield,  91  Va.  675,  22  8.  E.  882;  Lynch  y. 
Gas  Co..  165  Pa.  518,  30  Atl.  984. 


§§    28-29)  DEFINITIONS.  97 

DEFINITIONS. 

28.  A  penalty  is  a  sum  of  money  which  the  ob- 

ligor contracts  to  pay  by  way  of  penalty  if 
he  fails  to  perform  or  carry  out  the  terms 
imposed  on  him  by  the  contract. 

29.  Forfeiture  is  a  destruction  or  deprivation  of 

some  estate  or  right  because  of  the  failure 
to  perform  some  obligation  or  condition  con- 
tained in  a  contract. 

There  is  a  distinction  between  a  penalty  and  a  forfeiture, 
although,  in  a  general  sense,  the  two  words  have  the  same 
meaning.  Relief  is  always  given  against  a  penalty  if  com- 
pensation can  be  made,  for  it  is  deemed  a  mere  security; 
but  in  the  case  of  a  forfeiture  relief  is  not  always  given,  al- 
though compensation  can  be  made.  A  court  of  equity  will 
not  always  set  aside  a  forfeiture  incurred  on  the  breach  of  a 
covenant,  although  the  resulting  damages  may  be  easily 
ascertained,  and  payment  made  therefor  in  money,  unless 
upon  the  ground  of  accident,  mistake,  surprise,  or  fraud.  If 
a  person  is  liable,  under  his  obligation,  to  pay  a  certain  sum 
of  money,  but  stipulates  that,  if  such  sum  is  not  paid  at  the 
time  stated  in  the  contract,  he  will  pay  a  larger  sum  of  mon- 
ey, such  stipulation  is  a  penalty;  if  such  stipulation  involves 
the  loss  of  lands,  chattels,  or  securities  for  a  failure  to  pay  a 
certain  sum  or  perform  a  certain  act,  it  is  a  forfeiture. 
Where  a  sale  of  an  estate  was  made  on  terms  that  half  the 
purchase  money  should  be  paid  at  once,  and  the  other  half 
on  a  fixed  day,  and  that,  if  the  whole  was  not  paid  on  that 
day,  the  vendor  should  retain  the  estate  and  all  the  money 
then  paid,  it  was  held  to  be  a  penalty,  as  forfeiting  the  pur- 
chase money  paid  for  a  default  in  part,  and  relief  was  given  on 
payment  of  the  unpaid  balance  with  interest.1  When  a  par- 
ty contracts  in  the  alternative,  agreeing  to  pay  a  certain  sum 
if  he  performs  one  of  the  alternative  stipulations,  and  a 
larger  sum  if  he  performs  the  other  stipulation,  equity  does 

§§  28-29.     i  In  re  Dagenham  Dock  Co.,  8  Ch.  App.  1022. 

EATON, EQ. — 7 


98  PENALTIES    AND    FORFEITURES.  (Ch.  4 

not  regard  the  latter  stipulation  as  a  penalty.  In  a  leading 
English  case,  Lord  St.  Leonards,  in  speaking  of  such  al- 
ternative contracts,  says:  "If  a  man  covenants  to  abstain 
from  doing  a  certain  act,  and  agrees  that,  if  he  does  it,  he 
will  pay  a  sum  of  money,  he  would  be  compelled  to  abstain 
from  doing  that  act ;  for  he  cannot,  in  such  a  case,  elect  to 
break  his  engagement,  and  pay  the  penalty  instead.  But  if 
a  man  lets  meadow  land  for  two  guineas  an  acre,  and  the 
contract  is  that,  if  the  tenant  chooses  to  employ  it  in  tillage, 
he  may  do  so,  paying  an  additional  rent  o'f  two  guineas  an 
acre,  the  breaking  up  of  the  land  is  an  act  permitted  by  the 
contract,  which  in  that  case  provides  that  the  landlord  is  to 
receive  the  increased  rent."  a  In  other  words,  the  lessee  may 
do  with  the  land  as  he  pleases.  If  he  uses  it  in  one  way,  he  is 
to  pay  one  rent,  and,  if  in  another,  a  larger  rent.  Such  an  ar- 
rangement is  altogether  different  from  an  agreement  not  to 
do  a  thing,  with  a  penalty  for  doing  it.*  And  if  an  agreement 
is  made  for  the  payment  of  a  smaller  sum  at  a  certain  time, 
and  in  a  certain  manner,  in  discharge  of  an  existing  debt, 
with  the  condition  that  in  default  of  payment  the  whole  debt 
shall  be  payable,  the  reserved  right  to  compel  the  payment  of 
the  original  debt  is  not  a  penalty,  and  equity  will  afford  no 
relief  against  it.4  Where  a  mortgage  is  made  at  a  certain 
rate  of  interest,  conditioned  that,  if  payments  thereunder  are 
not  punctually  made,  a  higher  rate  of  interest  shall  be  char- 
ged, such  increased  interest  is  a  penalty,  and  relief  may  be 
had  if  the  debtor  pay  interest  at  the  lower  rate,  including  in- 

«  French  v.  Macale,  2  Dru.  &  War.  274.  See,  also,  Parfltt  v.  Cham- 
bre,  L.  R.  15  Eq.  36. 

»  Hardy  v.  Martin,  1  Cox,  27;  Herbert  v.  Railway,  L.  R.  2  Eq. 
221,  224,  225. 

*  Thompson  v.  Hudson,  L.  R.  4  H.  L.  1;  Ford  v.  Earl  of  Chester- 
field, 19  Beav.  429;  United  States  Mortg.  Co.  v.  Sperry,  138  U.  S. 
813,  348,  11  Sup.  Ct.  321,  332,  34  L.  Ed.  969,  982;  Reeves  v.  Stipp.  91 
111.  609.  In  Peachy  v.  Duke  of  Somerset,  2  White  &  T.  Lead.  Cas. 
Eq.  2025,  it  is  said  that:  "Where  a  certain  sum  of  money  is  due, 
and  the  creditor  enters  into  arrangements  with  his  debtor  to  take 
a  lesser  sum,  provided  that  sum  is  secured  In  a  certain  way,  and 
paid  at  a  certain  day,  but,  if  any  of  the  stipulations  of  the  arrange- 
ments are  not  performed  as  agreed  on,  the  creditor  Is  to  be  entitled 
to  recover  the  whole  of  the  original  debt,  such  remitter  to  his 
original  rights  does  not  constitute  a  penalty,  and  equity  will  not  In- 
terfere to  prevent  its  observance." 


§    30)  GROUNDS    FOR   RELIEF.  99 

terest  for  the  delay;  but,  if  a  certain  rate  of  interest  is  fixed, 
and  the  mortgagee  agrees  to  take  less  if  it  be  paid  punc- 
tually, the  agreement  is  valid,  and  no  relief  can  be  given.5 
And  where  a  debt  is  contracted  to  be  paid  in  installments, 
subject  to  the  condition  that  on  default  of  any  installment 
the  whole  sum  will  become  payable  at  once,  the  condition 
is  not  a  penalty,  and  there  is  no  relief  against  it.'  But,  if  the 
debtor  is  prevented  by  the  fraud  or  inequitable  conduct  of 
the  creditor  from  paying  the  installment,  relief  may  be  had 
in  equity  from  the  effect  of  the  default.1 


GROUNDS  TOR  BELIEF. 

80.  The  general  test  by  which  to  ascertain 
•whether  relief  in  equity  can  or  cannot 
be  had  against  a  penalty  is  to  consider 
whether  or  not  adequate  compensation  can 
be  made  for  a  breach  of  the  obligation  se- 
cured by  such  penalty. 

(a)  If  the  penalty  is   to  secure  the  payment   of 
money,  the  debtor   party  will   be   relieved 

•  Fowls  v.  Maynard,  3  Atk.  519;  Attwood  v.  Taylor,  1  Man.  & 
G.  279;  Wallls  v.  Smith,  21  Ch.  Div.  249. 

«  People  v.  Superior  Court,  19  Wend.  (N.  T.)  104;  Noyes  v.  Clark, 
7  Paige  (N.  Y.)  179,  180;  Malcolm  v.  Allen,  49  N.  Y.  448;  Bennett 
v.  Stevenson,  53  N.  Y.  508.  A  court  of  equity  cannot  relieve  a  mort- 
gagor from  a  failure  to  pay  taxes.  Ferris  v.  Ferris,  28  Barb.  (N.  Y.) 
29;  Spring  v.  Fisk,  21  N.  J.  Eq.  175,  178.  See,  also,  Baldwin  v. 
Van  Vorst,  10  N.  J.  Eq.  577;  Martin  v.  Melville,  11  N.  J.  Eq.  222; 
Robinson  v.  Loomis,  51  Pa.  78;  Schooley  v.  Komain,  31  Md.  574, 
579;  Ottawa  Northern  Plank-Road  Co.  v.  Murray,  15  111.  337;  Har- 
per v.  Ely,  56  111.  179;  Magnusson  v.  Williams,  111  111.  450;  Hood- 
less  v.  Reid,  112  111.  105,  1  N.  E.  118;  Gibbons  v.  Hoag,  95  111.  45; 
Chapin  v.  Billings,  91  111.  539;  Howell  v.  Railroad  Co.,  94  U.  S. 
463,  24  L.  Ed.  254;  WIlcox  v.  Allen,  36  Mich.  160. 

i  Bennett  v.  Stevenson,  53  N.  Y.  508,  where  it  Is  clearly  held 
that  fraud  or  Improper  conduct  on  the  part  of  the  creditor  would 
operate  as  an  excuse.  Noyes  v.  Anderson,  124  N.  Y.  175,  26  N.  E. 
816,  21  Am.  St.  Rep.  657,— in  which  case  relief  was  given  for  a 
default  In  the  payment  of  taxes  on  the  mortgaged  premises,  occa- 
sioned by  mistake.  See,  also,  Martin  v.  Melville,  11  N.  J.  Eq.  222; 
Wilcox  T.  Allen,  36  Mich.  160. 


100  PENALTIES    AND   FORFEITURES.  (Ch.  4 

on   the  payment  of    the  amount,   with  in- 
terest and  costs. 

(b)  If  the  penalty  is  to  secure  the  performance 
of  a  collateral  act  or  undertaking,  equity 
will  interfere  if  adequate  compensation  can 
be  made  the  creditor  party. 

The  earliest  case  for  relief  against  penalties  was  where 
the  penalty  was  contained  in  a  common  bond  to  secure  the 
payment  of  the  principal  and  interest  thereof.1  In  such  a 
case  there  is  no  difficulty  in  ascertaining  the  amount  which  is 
sufficient  to  compensate  the  creditor  for  the  failure  of  the 
debtor  to  make  the  agreed  payment.  At  a  later  time,  how- 
ever, equity  assumed  to  grant  relief  against  a  penalty  or  for- 
feiture imposed  for  a  breach  of  any  obligation,  provided  such 
breach  could  be  amply  compensated  by  a  payment  of  mon- 
ey.2 The  true  ground  of  relief  in  both  these  cases  is  that, 
as  the  penalty  is  designed  as  a  mere  security,  if  the  party  ob- 
tains his  money  or  his  damages,  he  gets  all  that  he  expected, 
and  all  that  in  justice  he  is  entitled  to.8  Where  a  penalty  or 
forfeiture  is  designed  merely  as  a  security  to  enforce  the 
principal  obligation,  it  is  as  much  against  conscience  to  al- 
low any  party  to  pervert  it  to  a  different  and  oppressive  pur- 
pose as  it  would  be  to  allow  him  to  substitute  another  for 
the  principal  obligation.4  As  has  been  noticed,  if  the  penalty 
is  for  the  payment  of  money  only,  and  the  penalty  requires 
a  payment  of  a  larger  sum,  the  rule  is  easily  applied.*  But, 

§  30.  i  Peachy  v.  Duke  of  Somerset,  2  White  &  T.  Lead.  Cas. 
Eq.  p.  1245. 

a  Sloman  v.  Walter,  2  White  &  T.  Lead.  Cas.  Eq.  p.  1260.  note. 

»  Skinner  v.  Dayton,  2  Johns.  Ch.  (N.  Y.)  535.  "In  reason,  In 
conscience,  In  natural  equity,  there  is  no  ground  to  say,  because  a 
man  has  stipulated  for  a  penalty  In  case  of  his  omission  to  do  a 
particular  act  (the  real  object  of  the  parties  being  the  performance 
of  the  act),  that,  If  he  omits  to  do  the  act,  he  shall  suffer  an  enor- 
mous loss,  wholly  disproportionate  to  the  Injury  to  the  other  party. 
If  it  be  said  that  it  is  his  own  folly  to  have  made  such  a  stipula- 
tion. It  may  equally  well  be  said  that  the  folly  of  one  man  cannot 
authorize  gross  oppression  on  the  other  side."  Story,  Eq.  Jur.  $ 
131(5. 

«  Story,  Eq.  Jur.  §  1316. 

•  Thompson  T.  Hudson,  L.  II.  4  H.  L.  15,  in  which  case  Lord 


§    31)  LIQUIDATED    DAMAGES.  101 

when  the  penalty  is  to  secure  the  performance  of  some  col- 
lateral act,  it  is  more  difficult.  The  penalty  in  such  case  may 
be  in  the  nature  of  liquidated  damages,  and  as  such  en- 
forceable both  in  law  and  equity.  The  cases  relative  to  the 
question  as  to  whether  a  provision  in  a  contract  for  the  pay- 
ment of  money  for  a  breach  thereof  is  to  be  treated  as  a  pen- 
alty or  as  stipulated  damages  are  many  and  varied.  The  de- 
termination of  such  question  is  by  no  means  free  from  diffi- 
culties. It  is  probable  that  no  one  rule  of  universal  appli- 
cation can  be  stated  which  will  be  decisive  in  reaching  such 
determination.  The  most  that  can  be  done  is  to  state  a 
few  special  rules  which  are  of  importance  in  considering  the 
question,  and  which  are  applicable  to  most,  if  not  all,  agree- 
ments. 

LIQUIDATED  DAMAGES. 

81.  If  a  contract  is  for  the  performance  or  non- 
performance  of  some  act  other  than  the  pay- 
ment of  money,  and  the  nature  of  the  con- 
tract is  such  that  the  damages  resulting  from 
the  violation  thereof  cannot  be  readily  and 
definitely  ascertained,  an  express  clause  may 
be  inserted  therein  providing  for  the  pay- 
ment of  a  certain  sum  of  money  as  liqui- 
dated damages  for  such  violation,  and  as 

Hatherley  says:  "Where  there  is  a  debt  actually  due,  and  In  re- 
spect of  that  debt  a  security  is  given,  be  it  by  way  of  mortgage  or 
be  it  by  way  of  stipulation  that,  in  case  of  its  not  being  paid  at  the 
time  appointed,  a  larger  sum  shall  become  payable  and  be  paid,  in 
either  of  these  cases  equity  regards  the  security  that  has  been  given 
as  a  mere  pledge  for  the  debt,  and  it  will  not  allow  either  a  for- 
feiture of  the  property  pledged,  or  any  augmentation  of  the  debt 
as  a  penal  provision,  on  the  ground  that  equity  regards  the  contem- 
plated forfeiture  which  might  take  place  at  law  with  reference  to 
the  estate  as  in  the  nature  of  a  penal  provision  against  which  equity 
will  relieve  when  the  object  in  view,  viz.  the  securing  of  the  debt, 
is  attained,  and  regarding  also  the  stipulation  for  the  payment  of  a 
larger  sum  of  money,  if  the  sum  be  not  paid  at  the  time  it  is  due, 
as  a  penalty  and  a  forfeiture  against  which  equity  will  relieve." 
See,  also,  Holies  v.  Wyse,  2  Vern.  289;  Strode  v.  Barker,  Id.  3l6; 
Nicholls  v.  Maynard,  3  Atk.  519;  Wallis  v.  Smith,  21  Ch.  Div.  243. 


102  PENALTIES    AND    FORFEITURKS.  (Ch.   4 

full  compensation  therefor.    Such  a  provi- 
sion is  enforceable  in  law  and  equity. 

Liquidated  damages  may  be  said  to  occur  when  the  parties 
to  a  contract  have  agreed  that,  in  case  one  party  shall  do  a 
stipulated  act,  or  omit  to  do  it,  the  other  party  shall  receive 
a  certain  sum  as  the  just,  appropriate,  and  conventional 
amount  of  the  damages  sustained  by  such  act  or  omission. 
In  such  cases  equity  will  not  interfere,  but  will  deem  the  par- 
ties competent  to  determine  what  the  measure  of  damages 
should  be.  But  relief  may  be  had,  even  in  cases  where  the 
damages  are  agreed  upon,  if  they  are  grossly  and  unreason- 
ably disproportionate  to  the  nature  or  extent  of  the  injury.1 
If  there  is  doubt  as  to  whether  the  parties  intended  to  ex- 
press stipulated  damages  or  a  penalty,  the  tendency  of  the 
courts  will  be  in  favor  of  the  latter,  because  the  law  favors 
mere  indemnity.1 

BULES  GOVERNING  THE  DETERMINATION  AS  TO 
LIQUIDATED  DAMAGES  OR  PENALTY. 

32.  The  following  rules  may  be  stated  as  affect- 
ing the  question  whether  an  amount  stated 
in  a  contract  to  be  paid  for  a  breach 
thereof  is  intended  as  liquidated  damages  or 
a  penalty: 

(a)  When,  from  the  nature  of  a  contract,  it  is  im' 
possible  to  definitely  compute  the  dam- 

I  31.  i  Story,  Eq.  Jur.  §  1318.  See,  also,  Clement  v.  Cash,  21  N. 
T.  253;  Colwell  v.  Lawrence,  38  N.  Y.  71;  Perkins  v.  Lyman,  11 
Mass.  76;  Lynde  v.  Thompson,  2  Allen  (Mass.)  456,  450;  Streeper 
T.  Williams,  48  Pa.  450. 

»  State  v.  Dodd,  45  N.  J.  Law,  525;  Wallls  v.  Carpenter,  13  Allen 
(Mass.)  19.  And  see  Fitzpatrlck  v.  Cottlngham,  14  Wls.  219.  Eq- 
uity IB  best  satisfied  by  the  payment  of  damages,  and  no  more,  and 
will  accept  the  conclusion  that  a  sum  stated  in  a  contract  was  in- 
tended as  liquidated  damages  only  when  plainly  shown.  Balrd  v. 
Tolllver,  6  Humph.  (Tenn.)  186,  44  Am.  Dec.  298;  Oheddick's  Ex'r 
T.  Marsh,  21  N.  J.  Law,  463;  Hahn  v.  Horetman,  12  Bush  (Ky.)  249. 
See.  also.  Hennessy  v.  Metzger,  152  111.  505,  38  N.  K.  1058;  Mon- 
mouth  Park  Ass'n  Y.  Iron  Work*.  55  N.  J.  Law,  132,  26  AU.  140, 
89  Am.  St  Kep.  628, 


§   32)        EULES  AS  TO  LIQUIDATED  DAMAGES  OK  PENALTY.  103 

ages  resulting  from  a  breach  thereof, 
the  sum  stated  therein  as  compensa- 
tion for  such  breach,  if  not  grossly 
disproportionate  to  the  injuries  suf- 
ered,  -will  be  deemed  liquidated  dam- 
ages. This  rule  involves  a  considera- 
tion of  the  subject  in  three  aspects: 

(1)  The  intent  of  the  parties. 

(2)  The  reasonableness  of  the  liquidation. 

(3)  The  language  employed. 

(b)  If  the  contract  provides  for  a  payment  of 
a  larger  sum  on  the  failure  of  the  party 
to  pay  a  less  sum,  or  to  deliver  a  thing  of 
less  value,  the  larger  sum  is  a  penalty, 
whatever  may  be  the  language  used  in  de- 
scribing it. 

(o)  When  the  agreement  contains  provisions  for 
the  performance  of  several  acts,  or  for 
omitting  to  perform  several  acts,  and  the 
damages  occasioned  by  their  breach  cannot 
be  measured,  and  it  is  agreed  that  a  stip- 
ulated sum  shall  be  paid  as  damages  for  a 
violation  of  any  or  all  of  such  provisions, 
such  sum  is  to  be  deemed  liquidated  dam- 
ages, and  not  a  penalty. 

(d)  When  the  agreement  contains  provisions  for 
the  performance  or  nonperformance  of  va- 
rious acts  -which  are  not  measurable  by 
any  exact  pecuniary  standard,  together 
•with  one  or  more  other  acts,  in  respect  of 
•which  the  damages  occasioned  by  a  breach 
thereof  are  easily  ascertainable  by  a  jury, 
and  a  certain  sum  is  stipulated  to  be  paid 


104  PENALTIES    AND    FORFEITURES.  (Ch.  4 

on  a  violation  of  any  or  all  of  these  provi- 
sions, such  sum  is  deemed  a  penalty, 
(e)  But  -where  the  stipulated  sum  to  be  paid  in 
case  of  a  violation  of  any  or  all  the  provi- 
sions of  a  contract  is  the  same  -whether  the 
party's  failure  to  perform  is  partial  or  com- 
plete, it  must  be  considered  a  penalty,  and 
not  as  liquidated  damages. 

These  rules  are  not  of  sufficient  scope  to  include  all  cases 
which  may  arise  in  which  the  determination  of  the  question 
of  what  constitutes  liquidated  damages  as  distinguished  from 
a  penalty  is  of  importance.  There  are  many  agreements 
which  cannot  be  subjected  to  any  fixed  rule,  and  to  which 
the  courts  will  apply  general  rules  of  interpretation.  The 
question  is  always  one  of  construction,  and  any  rule  on  the 
subject  is  a  mere  guide  to  the  intention  of  the  parties.1 

"When  Damages  Cannot  be  Ascertained. 

Uncertainty  as  to  the  extent  of  the  injuries  which  may  en- 
sue is  always  a  criterion  by  which  to  determine  whether  the 
case  is  one  of  liquidated  damages  or  a  penalty.8  A  frequent 
application  of  this  test  is  where  a  party  sells  his  business  and 
the  good  will  thereof,  and  contracts  not  to  engage  in  the 
same  business  within  a  given  territory,  and  for  a  breach 
thereof  to  forfeit  a  certain  sum  as  stipulated  damages.  In 
such  a  case  it  is  clearly  apparent  that  the  damages  resulting 
from  the  breach  are  not  measurable,  and  the  agreed  sum 
may  be  recovered,  unless,  of  course,  it  is  unreasonable.8 

I  82.     i  Kunkel  v.  Wherry,  189  Pa.  198,  42  Atl.  112. 

«  Powell  v.  Borrougbs,  54  Pa.  329;  Wolf  Creek  Diamond  Coal  Co. 
T.  Scbultz,  71  Pa.  180. 

•  Kelso  v.  Reid,  145  Pa.  606,  23  Atl.  323;  Pierce  v.  Fuller,  8  Mass. 
223,  5  Am.  Dec.  102;  Cushlng  v.  Drew,  97  Mass.  445;  Streeter  v. 
Rush,  25  Cal.  67;  Newman  v.  Wolf  son,  69  Ga.  764;  Duffy  v. 
Bhockey,  11  Ind.  70,  71  Am.  Dec.  348;  Splcer  v.  Hoop,  61  Ind.  365; 
Johnson  v.  Gwlnn,  100  Ind.  466;  Jaquith  v.  Hudson,  6  Mich.  128; 
Cheddlck'a  Ex'r  v.  Marsh,  21  N.  J.  Law,  463;  Hoagland  v.  Segur, 
88  N.  J.  Law,  230;  Nobles  v.  Bates,  7  Cow.  (N.  Y.)  307;  Smith  v. 
Smith,  4  Wend.  (N.  Y.)  468;  Dakin  v.  Williams,  17  Wend.  (N.  Y.) 


§   32)       EDLES  AS  TO  LIQUIDATED  DAMAGES  OB  PENALTY.  1  05 

And  where  a  purchase  was  made  of  a  business  and  a  trade 
secret,  which  secret  the  vendor  agreed  not  to  divulge  under 
a  penalty  described  in  the  contract  as  stipulated  damages, 
the  purchaser  was  held  liable  to  pay  the  entire  penalty  as 
liquidated  damages,  on  the  ground  that  the  damages  occa- 
sioned by  a  violation  of  the  agreement  were  wholly  uncer- 
tain, and  incapable  of  being  ascertained  except  by  conjec- 
ture.4 Another  frequent  application  of  the  rule  that  dam- 
ages may  be  liquidated  by  the  parties  is  in  the  case  of  fail- 
ure to  complete  the  performance  of  a  contract  at  the  time 
mentioned  therein, — as,  when  a  building  contract  provides 
that  the  work  shall  be  completed  on  a  certain  day,  and  in  de- 
fault thereof  the  builder  shall  pay  a  stipulated  sum  for  every 
day  or  week  for  which  the  completion  of  the  work  is  delayed 
beyond  that  time,  the  stipulated  sum,  if  reasonable,  may  be 
recovered  as  stipulated  damages.8  The  cases  mentioned  are 
only  a  few  of  those  in  which  the  rule  that,  when  the  amount 
of  damages  occasioned  by  a  breach  of  a  contract  cannot  be 
easily  ascertained,  the  sum  stipulated  will  be  allowed  as  liqui- 
dated damages.  A  number  of  cases  are  cited  in  the  note 
which  are  illustrative  of  this  principle.6 

447;  Dunlop  v.  Gregory,  10  N.  Y.  241,  61  Am.  Dec.  746;  Lange  v. 
Werk,  2  Ohio  St.  519. 

*  Tode  v.  Gross,  127  N.  Y.  480,  28  N.  E.  469,  13  L.  R.  A.  652,  24 
Am.  St.  Rep.  475. 

o  O'Donnell  v.  Rosenberg  (N.  Y.)  14  Abb.  Prac.  (N.  S.)  59;  Bridges 
v.  Hyatt,  2  Abb.  Prac.  449;  Folsom  v.  McDonough,  6  Gush.  (Mass.) 
208;  Mueller  v.  Kleine,  27  111.  App.  473.  But  in  Wilcus  v.  Kling, 
87  111.  107,  where  no  actual  damage  could  be  shown,  the  stipu- 
lated sum  was  deemed  a  penalty;  and,  where  the  stipulated  sum  is 
greatly  out  of  proportion  to  any  possible  damage,— as  where  it  was 
stipulated  in  a  contract  for  the  construction  of  a  house,  the  rental 
value  of  which  was  $25  a  month,  that  $150  a  week  should  be  paid 
as  damages  for  delay  in  the  completion  of  the  work,— the  sum  was 
not  allowed  as  liquidated  damages.  Clements  v.  Railroad  Co.,  132 
Pa.  445,  19  Atl.  274,  276. 

«  Cotheal  v.  Talmage,  9  N.  Y.  551,  61  Am.  Dec.  716;  Pearson  v. 
Williams'  Adm'r,  24  Wend.  (N.  Y.)  246;  Clement  v.  Cash,  21  N.  Y. 
253;  Bagley  v.  Peddle,  16  N.  Y.  470,  69  Am.  Dec.  713;  Leary  v. 
Laflin,  101  Mass.  334;  Wolf  Creek  Diamond  Coal  Co.  v.  Schultz,  71 
Pa.  180;  Powell  v.  Borroughs,  54  Pa.  329,  336;  Brewster  v.  Edger- 
ly,  13  N.  H.  275;  Berrikott  v.  Traphagen,  39  Wis.  220;  Peine  v. 
Weber,  47  111.  41.  The  sum  stipulated  to  be  paid  for  a  breach  of 
contract  for  the  sale  of  personal  property,  If  the  articles  sold  are 


106  PENALTIES    AND    FORFEITURES.  (Ch.  4 

Intent  of  the  Parties. 

If  the  damages  stipulated  against  are  certain  and  fixed, 
and  may  be  easily  and  accurately  ascertained,  the  intent  of 
the  parties  is  immaterial,  and  the  sum  stipulated  will  be  con- 
sidered as  a  penalty.  This  is  in  contravention  of  the  general 
rule  relative  to  the  construction  of  contracts,  which  gives 
controlling  weight  to  the  intent  of  the  parties  as  expressed 
in  the  contract.  The  underlying  principle  of  the  whole  sub- 
ject relative  to  the  payment  of  any  stipulated  sum  for  a 
breach  of  a  contract  is  that  of  compensation.  If  the  con- 
tracting parties  lose  sight  of  this  principle,  and  stipulate,  not 
for  compensation,  but  for  a  sum  out  of  proportion  to  the 
actual  damages  incurred  by  a  breach  of  the  contract,  the  law 
will  not  enforce  a  payment  of  the  stipulated  amount,  even  if 
the  contract,  by  express  terms,  declares  such  amount  to  be 
"liquidated  damages."  But,  if  there  is  uncertainty  as  to  the 
amount  of  damages  incurred  by  the  breach,  the  question  as 
to  whether  the  parties  intended  the  stipulated  sum  to  be  con- 
sidered as  a  penalty  or  liquidated  damages  is  to  be  deter- 
mined, among  other  things,  by  considering  the  language  of 
the  contract.7 

The  Liquidation  must  be  Reasonable* 

If  the  intent,  as  expressed  in  the  contract,  is  that  the  sum 
stipulated  therein  should  be  paid  upon  a  breach,  the  sum,  if 

such  as  to  be  subject  to  the  legal  measure  of  damages,— that  Is, 
the  difference  between  the  market  price  and  the  price  agreed  to  be 
paid,— Is  generally  considered  a  penalty.  Jemmlson  v.  Gray,  29 
Iowa,  537;  Shreve  v.  Brereton,  51  Pa.  175,  186;  Burr  v.  Todd,  41 
Pa.  209.  If  the  contract  Is  for  the  sale  of  a  particular  kind  of 
personal  property,  or  some  specified  article  of  peculiar  value,  to 
which  It  Is  Impossible  to  affix  a  market  value,  the  stipulated  sum 
may  be  deemed  liquidated  damages.  See  Lynde  v.  Thompson,  2 
Allen  (Mass.)  4GO;  Gammon  v.  Howe,  14  Me.  250;  Chamberlain  v. 
Bagley,  11  N.  H.  234;  Mead  v.  Wheeler,  13  N.  H.  351;  Shiell  v. 
McNitt,  9  Paige  (N.  Y.)  101,  103.  But,  if  the  stipulated  sum  is  ex- 
cessive, a  court  of  equity  might  deem  It  a  penalty.  Spencer  v.  Til- 
den,  5  Cow.  (N.  Y.)  144;  Burr  v.  Todd,  41  Pa.  206. 

T  Little  v.  Banks,  85  N.  Y.  258.  260,  where  the  court  lays  down  the 
rule  that  In  construing  such  provisions,  in  contracts,  the  actual  In- 
tention of  the  parties,  so  far  as  it  can  be  reasonably  and  fairly 
ascertained  from  the  language  of  the  contract  and  from  the  circum- 
stances of  the  case.  Is  to  be  considered,  citing  Oolwell  v.  Lawrence, 
88  N.  Y.  71;  Cotheal  v.  Talmage,  9  N.  Y.  551,  61  Am.  Dec.  716. 


§    32)        RULES  AS  TO  LIQUIDATED  DAMAGES  OR  PENALTY.  107 

reasonable,  and  proportionate  to  the  injuries  sustained,  must 
be  paid  by  the  party  in  default.  If  the  stipulated  sum  is  un- 
reasonably large,  it  will  be  deemed  a  penalty,  and  the  courts 
will  require  damages  to  be  assessed  as  if  no  stipulated  sum 
was  named  in  the  contract.8  Just  compensation  for  the  in- 
jury sustained  is  the  principle  at  which  the  law  aims,  and 
the  parties  will  not  be  permitted  by  express  stipulation  to  set 
this  principle  aside.'  In  many  cases,  however,  it  has  been 
stated  that  the  mere  amount  stipulated  is  not  sufficient  of 
itself  to  justify  the  court  in  holding  that  it  is  a  penalty.10 
But  it  is  certain  that  the  amount  of  the  sum  can  always  be 
taken  into  consideration  as  an  aid  in  determining  the  inten- 
tion of  the  parties  to  the  contract,  and,  if  it  be  dispropor- 
tionate to  the  damages  that  would  be  sustained  by  the 
breach,  the  court  may  properly  declare  it  to  be  a  penalty.11 

The  Language  Employed. 

The  language  of  a  contract  is  not  conclusive  to  determine 
the  question  whether  a  stipulated  sum  is  to  be  allowed  as 
liquidated  damages.  Because  parties  have  called  a  sum  dam- 
ages, or  because  they  have  designedly  used  language  and  in- 
serted provisions  which  are  in  their  nature  penal,  and  yet 

s  People  v.  Railroad  Co.,  76  Cal.  29,  18  Pac.  90;  Monmouth  Park 
Ass'n  v.  Iron  Works,  55  N.  J.  Law,  132,  26  Atl.  140;  Sedg.  Dam.  § 
407;  Story,  Eq.  Jur.  ?  1318. 

»  Myer  v.  Hart,  40  Mich.  517,  523,  29  Am.  Rep.  553. 

10  Clement  v.  Cash,  21  N.  Y.  253;   Shiell  v.  McNitt,  9  Paige  (N.  Y.) 
101;    Dwinel  v.  Brown,  54  Me.  468;    Morse  v.   Rathbura,  42   Mo. 
694,  97  Am.  Dec.  359;   Peine  v.  Weber,  47  111.  41;   Gobble  v.  Linder, 
76  111.  157;   Keeble  v.  Keeble,  85  Ala.  552,  5  South.  149. 

11  March  v.  Allabough,  103  Pa.  335,  where  the  court  said,  in  de- 
termining the  question:    "We  must  consider  the  relation  which  the 
sum  stipulated  bears  to  the  injury  which  may  be  caused  by  the 
breach   provided   against,   the   ease   or   difficulty   of   measuring   a 
breach  in  damages,  and  such  other  matters  as  are  legally  or  neces- 
sarily inherent  in  the  transaction."     See,  also,  Keck  v.  Bieber,  148 
Pa.  645,  24  Atl.  170;    Kunkel  v.  Wherry,  189  Pa.  198,  42  Atl.  112- 
Berry  v.  Wisdom,  3  Ohio  St.  241;    Perkins  v.  Lyman,  11  Mass.  76, 
6  Am.  Dec.   158;    Lynde  v.    Thompson,  2  Allen   (Mass.)   456,   459 
Hodges  v.  King,  7  Mete.  (Mass.)  583;    Curry  v.  Larer,  7  Pa,  470 
Colwell  T.  Lawrence,  38  N.  Y.  71;    Parr  v.  Village  of  Greenbusb, 
42  Hun  (N.  Y.)  232;   Scofield  v.  Tompkins,  95  111.  190,  35  Am.  Rep 
100. 


103  PENALTIES    AND   FORFEITURES.  (Ch.  4 

have  endeavored  to  cover  up  their  objects  under  other  dis- 
guises, courts  of  equity  will  not  be  deprived  of  their  juris- 
diction to  relieve  against  what  is  in  truth  a  penalty.11  If  it 
is  apparent  from  the  intent  of  the  parties  as  expressed  in 
the  contract  that  the  word  "penalty"  was  used  where  "liq- 
uidated damages"  was  intended,  or,  on  the  other  hand,  that 
the  words  "liquidated  damages"  were  used  where  "penalty" 
was  meant,  the  use  of  either  of  such  terms  will  not  control  in 
determining  the  question.18  And  it  has  been  decided  in  a 
well-considered  case  that,  even  if  it  were  admitted  as  a  fact 
that  the  parties  intended  the  sum  to  be  deemed  liquidated 
damages,  and  not  a  penalty,  the  intention  could  have  no  in- 
fluence on  the  decision  of  a  court  of  law.1* 

Stipulation  for  Nonpayment  of  Smaller  Sum. 

Although  the  contract  may  not,  in  form,  provide  for  the 
payment  of  money,  if  it,  in  effect,  provides  for  such  a  pay- 
ment, and  a  sum  is  stipulated  for  a  breach  thereof,  such  sum 
is  a  penalty.16  Such  stipulation  is  a  penalty  not  only  when  it 
provides  for  the  payment  of  a  larger  sum  on  the  failure  to 
pay  a  smaller  amount,  but  also  where  it  may  possibly  lead 
to  such  a  result.18 

Contract  Providing  for  More  Than  One  Thing. 

Where  a  contract  provides  for  the  performance  or  nonper- 
formance  of  more  than  one  act,  and  the  damages  resulting 


12  Story,  Eq.  Jur.  §  1318;  Ropes  v.  Upton,  125  Mass.  258;  Bird  v. 
Lake,  1  Hem.  &  M.  Ill;  Howard  v.  Woodward,  34  Law  J.  Ch.  47. 

!•  Parfitt  v.  Chambre,  L.  R.  15  Eq.  36;  Fletcher  v.  Dysche,  2 
Terra  R.  32;  Greeii  v.  Price,  13  Mees.  &  W.  701;  Gushing  v.  Drew, 
97  Mass.  445;  Shute  v.  Taylor,  5  Mete.  (Mass.)  61;  Streeper  v.  Wil- 
liams, 48  Pa.  450;  Hamaker  v.  Schroers,  49  Mo.  406;  Little  v. 
Banks.  85  N.  Y.  266;  Ward  v.  Building  Co.,  125  N.  Y.  230,  26  N.  E. 
256;  Yenner  v.  Hammond,  36  Wis.  277;  Schotteld  v.  Tompklns,  95 
111.  190,  35  Am.  Rep.  160;  Beard  v.  Delaney,  35  Iowa,  16;  Spear  v. 
Smith.  1  Denio  (N.  Y.)  464;  Hoag  v.  McGinnis,  22  Wend.  (N.  Y.)  165. 

i«  Jaqulth  v.  Hudson,  6  Mich.  123,  136. 

»«  Clement  y.  Cash,  21  N.  Y.  253;  Bagley  v.  Peddle,  16  N.  Y.  469, 
69  Am.  Dec.  713;  Whltfleld  v.  Levy,  35  N.  J.  Law,  149;  Dakln  v. 
Williams.  17  Wend.  (N.  Y.)  447;  Tiernan  v.  Hlnman,  16  I1L  400; 
Pelne  v.  Weber,  47  111.  41;  Kuhn  y.  Myers,  37  Iowa,  351. 

»•  Spear  v.  Smith,  1  Denlo  (N.  Y.)  465;  Gray  y.  Crosby,  18  Johns. 
(N.  Y.)  219.  226;  Curry  v.  Larer,  7  Pa.  470. 


§    32)        RULES  AS  TO  LIQUIDATED  DAMAGES  OR  PENALTY.  109 

from  a  violation  of  all  or  each  of  them  are  uncertain  as  to 
amount,  a  stipulated  sum.  will  be  treated  as  liquidated  dam- 
ages, for  the  same  reasons  and  on  the  same  principles  as 
though  only  one  provision  was  contained  in  the  contract.17 
But  where  the  sum  is  fixed  as  security  for  the  performance 
or  nonperformance  of  several  acts  of  widely  different  impor- 
tance, damages  for  breaches  of  some  of  which  are  easily 
ascertained,  and  for  any  of  which  the  sum  stipulated  is  an 
excessive  compensation,  such  sum  must  be  regarded  as  a 
penalty.18  In  New  York  the  principle  has  been  deduced 
from  the  leading  English  cases  that,  where  a  party  agrees  to 
do  several  things,  one  of  which  is  to  pay  a  sum  of  money,  and 
in  case  of  a  failure  to  perform  any  or  either  of  the  stipula- 
tions agrees  to  pay  a  larger  sum  as  liquidated  damages,  the 
larger  sum  is  to  be  regarded  in  the  nature  of  a  penalty,  and, 
being  a  penalty  in  regard  to  one  of  the  stipulations  to  be 
performed,  is  a  penalty  as  to  all.19  It  follows  from  the  rea- 
soning of  the  New  York  cases  that,  if  one  of  the  things  to 
be  performed  is  of  such  a  nature  that  failure  to  perform  can 
be  easily  measured  by  a  pecuniary  standard,  the  same  prin- 
ciple applies.  If  the  contract  is  one  in  which  the  damages 
occasioned  by  a  partial  performance  are  ascertainable,  and 
a  sum  is  stipulated  for  a  breach  of  the  entire  contract,  such 

"  Green  v.  Price,  13  Mees.  &  W.  695;  Rawlinson  v.  Clarke,  14 
Mees.  &  W.  187;  Shute  v.  Hamilton,  3  Daly  (N.  Y.)  462;  Mott  v. 
Mott,  11  Barb.  (N.  Y.)  134;  Lange  v.  Werk,  2  Ohio  St.  519. 

is  EX  parte  Capper,  4  Ch.  Div.  724;  Davles  v.  Penton,  6  Barn.  & 
O.  216;  Edwards  v.  Williams,  5  Taunt.  247;  Beckham  v.  Drake,  8 
Mees.  &  W.  846;  Watts  v.  Camors,  115  U.  S.  353,  6  Sup.  Ct.  91,  29 
L.  Ed.  406;  Trower  v.  Elder,  77  111.  452;  Carpenter  v.  Lockhart,  1  Ind. 
434;  Heatwole  v.  Gorrell,  35  Kan.  692,  12  Pac.  135;  Heard  v.  Bowers, 
23  Pick.  (Mass.)  455;  Higginson  v.  Weld,  14  Gray  (Mass.)  165;  Daily 
v.  Litchfield,  10  Mich.  29;  Trustees  of  First  Orthodox  Congregational 
Church  of  Middleville  v.  Walrath,  27  Mich.  232;  Carter  Y.  Strom, 
41  Minn.  522,  43  N.  W.  394;  Moore  v.  Platte  Co.,  8  Mo.  467;  Long 
v.  Towl,  42  Mo.  545,  97  Am.  Dec.  355;  Whitfield  v.  Levy,  35  N.  J. 
Law,  149;  State  v.  Dodd,  45  N.  J.  Law,  525;  Jackson  v.  Baker,  2 
Edw.  Ch.  (N.  Y.)  471;  Niver  v.  Rossman,  18  Barb.  (N.  Y.)  50;  Staples 
v.  Parker,  41  Barb.  (N.  Y.)  648;  Beale  v.  Hayes,  5  Sandf.  (N.  Y.)  640; 
Barry  v.  Wisdom,  3  Ohio  St.  241;  Shreve  v.  Brereton,  51  Pa.  175; 
March  v.  Allabough,  103  Pa.  335. 

i»  Cotheal  v.  Talmage,  9  N.  Y.  551,  556,  61  Am.  Dec.  716;  Lamp- 
man  v.  Cochrau,  16  N.  Y.  275;  Clement  v.  Cash,  21  N.  Y.  253. 


110  PENALTIES    AND  FORFEITURES.  (Ch.  4 

sum  will  not  be  allowed  as  liquidated  damages  in  case  of  such 
partial  performance ; 20  as,  where  a  contract  is  made  for  the 
sale  and  delivery  of  a  specified  commodity  in  certain  quanti- 
ties at  different  times,  for  a  breach  of  which  a  lump  sum  is 
stipulated  to  be  paid,  the  sum  must  be  considered  as  a  pen- 
alty, for  otherwise  the  vendor  might  be  required  to  pay  as 
much  for  a  partial  failure  to  perform  his  contract  as  though 
he  had  made  no  effort  to  fulfill.21  In  such  cases,  as  in  all 
cases  involving  a  consideration  of  this  question,  if  it  is  ap- 
parent that  the  parties  have  abandoned  the  fundamental 
guide  of  compensation,  and  have  applied  an  unjust,  oppres- 
sive, and  disproportionate  measure  of  damages,  the  courts 
will  not  allow  the  intention  of  the  parties  to  prevail. 


ENFORCING  FORFEITURES. 

83.  Equity  will  not  lend  its  active  aid  to  enforce 
a  forfeiture. 

This  rule  rests  on  the  maxim  that  he  who  comes  into  equi- 
ty must  do  equity,  and  must  come  with  clean  hands.  Equity 
will  therefore  withhold  its  aid  from  one  insisting  on  the 
harsh  remedy  of  forfeiture  for  a  condition  broken,  since  eq- 
uitably he  is  entitled  only  to  just  compensation  for  his  in- 
jury, and  he  will  be  remitted  to  his  legal  remedies.1 

«o  Heatwole  v.  Gorrell,  35  Kan.  692,  12  Pac.  135;  Watt's  Ex'rs 
v.  Sheppard,  2  Ala.  425;  Shute  v.  Taylor,  6  Mete.  (Mass.)  61;  Ham- 
aker  v.  Schroers,  49  Mo.  406. 

21  Shreve  v.  Brereton,  51  Pa.  175;  Lee  v.  Overstreets  Adm'r,  44 
Ga.  507;  Hamaker  v.  Schroers,  49  Mo.  406. 

§  33.  i  Douglas  v.  Insurance  Co.,  127  111.  101,  20  N.  B.  51;  Craig 
T.  Huklll,  37  W.  Va.  520,  16  S,  E.  363;  Birmingham  v.  Lesan,  77  Me. 
494,  1  Atl.  151;  Mills  v.  Seminary,  52  Wls.  669,  9  N.  W.  925;  Mc- 
Cormlck  v.  Rossi,  70  Cal.  474,  15  Pac.  35;  Livingston  v.  Tompklns, 
4  Johns.  Ch.  (N.  Y.)  415,  431;  Melgs'  Appeal,  62  Pa.  28,  35;  Oil 
Creek  R,  Co.  v.  Railroad  Co.,  57  Pa.  65. 


§    34)         EQUITY    WILL   RELIEVE    AGAINST   FORFEITURES.  Ill 


WHEN    EQUITY   WILL   BELIEVE  AGAINST  FORFEI- 
TURES. 

34.  Equity  will  relieve  against  a  forfeiture  in  all 
cases  where  it  is  incurred  by  a  breach  of 
an  express  agreement  to  pay  a  sum.  of 
money,  or  any  other  agreement  which  in- 
volves indirectly  the  payment  of  a  sum  of 
money. 

It  is  generally  stated  that  relief  against  forfeitures  is  af- 
forded on  the  same  grounds  and  in  the  same  cases  as  relief 
against  penalties.  This  statement  is  subject  to  qualification, 
for  equity  will  not  relieve  against  forfeitures  in  all  cases 
where  compensation  can  be  made.  There  are  many  for- 
feitures incurred  by  the  breach  of  covenants  in  leases  and 
other  strict  contracts,  where  compensation  can  easily  be 
made,  against  which  equity  will  not  relieve ;  *  as,  where  a 
contract  for  the  sale  of  land  is  so  drawn  that  the  time  of  pay- 
ment is  the  essence  of  the  contract,  equity  will  not  relieve 
against  the  default  of  the  vendee;  and  when  such  contract 
is  made  to  depend  upon  a  condition  precedent — as  the  pay- 
ment of  the  consideration  by  the  vendee  before  performance 
by  the  vendor — equity  will  not  relieve  against  a  forfeiture  oc- 
casioned by  a  nonperformance  of  the  condition  precedent.2 
Nor  will  equity  relieve  against  a  forfeiture  for  the  breach  of 
a  covenant  contained  in  a  lease,  other  than  one  to  pay  rent, 
unless  on  the  ground  of  accident,  mistake,  or  fraud;  for  it 
has  been  considered  that,  even  where  the  damages  are  ca- 
pable of  being  ascertained,  the  jurisdiction  of  equity  in  giv- 
ing relief  in  such  cases  is  a  dangerous  jurisdiction,  and  rarely 

§  84.  i  Eaton  v.  Lyon,  3  Ves.  692,  693;  Germantown  Passenger 
Ry.  Co.  v.  Fitter,  60  Pa.  131;  Dunklee  v.  Adams,  20  Vt  415. 

2  Wells  v.  Smith,  2  Edw.  Oh.  (N.  Y.)  78;  Wells  v.  Smith,  7  Paige 
(N.  Y.)  22,  31  Am.  Dec.  274;  Edgerton  v.  Peckham,  11  Paige  (N.  Y.) 
362;  Sanborn  v.  Woodman,  5  Oush.  (Mass.)  36;  Remington  v.  Irwin, 
14  Pa.  143,  145;  Clark  v.  Lyons,  25  111.  105;  Snyder  v.  Spaulding, 
57  111.  480,  482. 


112  PENALTIES    AND   FORFEITURES.  (Ch.   4 

works  a  real  compensation.8  But  where  a  person  has  been 
prevented  from  executing  an  agreement  by  fraud,  accident, 
surprise,  or  excusable  ignorance,  equity  will  relieve  against 
a  forfeiture,  even  if  the  damages  resulting  from  the  breach 
cannot  be  measured  by  a  pecuniary  standard.4 


STATUTORY  PENALTIES  AND  FORFEITURES. 

36.  The  jurisdiction  of  equity  to  relieve  against 
penalties  and  forfeitures  does  not  extend  to 
those  imposed  by  statute.1 

Statutory  enactments  are  binding  on  all  courts,  and  courts 
of  equity  are  powerless  to  set  them  aside.  The  distinction 
between  penalties  and  forfeitures  imposed  by  contract  and 
those  imposed  by  statute  has  always  been  observed.  As 
Lord  Macclesfield,  in  the  leading  case  on  this  subject,  said : 
"You  can  never  say  that  the  law  determined  hardly,  but  you 
may  say  that  the  party  has  made  a  hard  bargain."  2  It  has 
even  been  held  that  a  statutory  penalty  will  be  enforced  by  a 
court  of  equity  if  the  case  is  properly  before  it.' 

•  Smith,  Eq.  (15th  Ed.)  p.  335;    Gregory  v.  Wilson,  9  Hare,  689; 
Nokes  v.  Gibbon,  3  Drew.  681;   Bracebridge  v.  Buckley,  2  Price,  215. 

*  Eaton  v.  Lyon,  3  Ves.   693;    Hill  v.  Barclay,   18  Ves.  58,  62; 
Noyes  v.  Anderson,  124  N.  Y.  175,  26  N.  E.  316;   Kopper  v.  Dyer,  59 
Vt.  477,  9  Atl.  4;   Mactier  v.  Osborn,  146  Mass.  399,  15  N.  E.  641; 
Hulett  v.  Fairbanks,  40  Ohio  St.  233. 

§  35.  i  Clark  v.  Barnard,  108  U.  S.  436,  457,  2  Sup.  Ct  878,  27 
L.  Ed.  780,  and  cases  cited;  State  v.  McBride,  76  Ala.  51;  Keating 
T.  Sparrow,  1  Ball  &  B.  373. 

»  Peachy  v.  Duke  of  Somerset,  2  White  &  T.  Lead.  Cas.  Eq.  1253. 

»  State  v.  Hall,  70  Miss.  678,  13  South.  39.  Contra,  Broadnax  v. 
Baker,  94  N.  C.  675,  65  Am.  Rep.  633. 


§    36)  PRIORITIES    AND    KOTICK.  113 

CHAPTEB  V. 
PRIORITIES  AND  NOTICE. 

88.    Origin  and  Application  of  Doctrine  of  Priority. 
87.    Doctrine  Does  Not  Apply  to  Legal  Estates. 

38.  Equal  Equities. 

39.  Where  One  of  the  Parties  Has  the  Legal  Estate. 

40.  Superior  Equities. 

41.  Superiority  of  Estate  Created  by  Trust  or  Contract 

42.  Equity  in  Specific  Thing. 

43.  Equity  of  Party  Misled, 

44.  Notice  of  an  Equity. 
45-46.  Notice— Definition. 
47-49.  Kinds  of  Notice. 

60.    Actual  Notice. 

51.  Constructive  Notice. 

52.  Possession  as  Constructive  Notice. 

53.  Constructive  Notice  by  Registration. 

54.  Recitals  in  Title  Papers. 
65.  Lls  Pendens. 

ORIGIN   AND   APPLICATION  OP  DOCTRINE  OP  PRI- 
ORITY. 

36.  The  doctrine  of  priority  rests  on  the  equitable 
maxims:  "Where  the  equities  are  equal, 
the  first  in  time  will  prevail,"  and,  "Where 
the  equities  are  equal,  the  law  must  pre- 
vail." 

The  meaning  and  effect  of  these  maxims  have  been  ex- 
plained in  a  preceding  chapter.1  Both  are  based  upon  the 
assumption  that  the  equities,  the  priorities  of  which  are  to  be 
determined,  are  equal.  If  they  are  unequal,  the  superior  eq- 
uity must,  of  course,  prevail,  and  they  are  not  affected  by 
the  order  of  time.  As  a  result  of  the  application  of  the  sec- 
ond maxim,  if  there  be  annexed  to  one  of  two  equal  equities 
in  an  estate,  the  legal  title  thereto,  the  person  acquiring  such 

f  86.    t  Ante,  §§  17,  18. 
EATON.EQ.— 8 


114  PRIORITIES    AND    NOTICE.  (Ch.   6 

legal  title  will  have  a  priority  of  claim  over  a  person  having 
a  bare  equity  in  the  estate. 


DOCTRINE   DOES   NOT   APPLY    TO  LEGAL  ESTATES. 

87.  The  equitable  doctrine  of  priority,  as  affected 
by  lack  of  consideration,  absence  or  pres- 
ence of  notice,  or  other  incident,  excepting 
order  of  time,  does  not  apply  to  legal  es- 
tates and  interests. 

At  law,  priorities  were  determined  almost  exclusively  by 
order  of  time.  The  equitable  doctrine  of  priority,  as  affected 
by  want  of  consideration,  presence  or  absence  of  notice,  or 
any  other  incident  cognizable  in  equity,  but  not  at  law,  had 
no  place  in  the  administration  of  the  common  law,  unless 
expressly  provided  by  statute.  At  law,  the  equities  vested 
in  either  of  the  parties  to  a  controversy  do  not  influence  the 
determination  of  the  rights  of  such  parties,  which  depend 
for  their  priority  exclusively  upon  the  order  of  time;  as, 
when  a  legal  conveyance  of  property  is  made,  the  grantor 
has  no  right  remaining  in  such  property  which  he  can  trans- 
fer to  another,  and  the  first  conveyance  has  precedence  over 
any  subsequent  conveyance,  even  if  the  subsequent  grantee 
had  no  notice  of  the  prior  conveyance.1  Even  the  absence  of 
a  valid  consideration  does  not  affect  priority  at  law,  except 
where  it  is  otherwise  provided  by  statute.*  The  equitable 
doctrine  of  priority  is  applicable  to  equitable  estates,  rights, 

§  37.  i  Gaiiies  v.  City  of  New  Orleans,  6  Wall.  642,  716.  18  L.  Ed. 
950;  Ruckman  v.  Decker,  23  N.  J.  Eq.  283;  Van  Amrlnge  v.  Morton, 
4  Whart.  (Pa.)  382;  Wade  v.  Withlngton,  1  Allen  (Mass.)  5G1. 

2  Statutes  have  been  passed  In  England  (27  Ellz.  c.  4;  13  Ellz.  c. 
6)  and  In  the  states  of  this  country  declaring  Invalid  transfers  of 
land  and  other  property  made  for  the  purpose  of  defrauding  cred- 
itors, and  providing  that  grants  of  lands  made  for  the  purpose  of 
defrauding  subsequent  purchasers  for  a  valuable  consideration  are 
void  as  against  such  subsequent  purchasers.  See  Tey's  Case,  3 
Coke,  80;  Twyne's  Case,  1  Smith,  Lead.  Cas.  Eq.  (8th  Am.  Ed.)  33; 
Sexton  v.  Wheaton,  8  Wheat  229,  5  L.  Ed.  603. 


§    38)  EQUAL   EQUITIES.  115 

and  remedies,  and  to  conflicting  legal  and  equitable  estates 
and  interests  in  the  same  subject-matter.* 


EQUAL  EQUITIES. 

38.  Order  of  time  controls  in  all  cases  where  the 
parties  have  equal  equitable  interests  in  the 
same  subject-matter,  and  are  all  entitled, 
•with  respect  to  such  interests,  to  the  pro- 
tection and  aid  of  a  court  of  equity. 

This  rule  is  merely  an  amplification  of  the  maxim,  "Where 
the  equities  are  equal,  the  first  in  order  of  time  shall  pre- 
vail." It  is  difficult  to  lay  down  a  rule  that  can  be  univer- 
sally applied  in  determining  what  are  equal  equities.  They 
may  not  be  of  precisely  the  same  nature,  and  yet  be  equally 
entitled  to  the  protection  of  a  court  of  equity.1  But  it  may 
be  stated  as  generally  true  that,  if  the  equities  of  the  parties 
are  such  that  each  is  equally  entitled  to  the  aid  and  protection 
of  a  court  of  equity,  their  equities  are  equal,  and  the  first  in 
order  of  time  must  prevail.'  The  fact  that  the  party  pos- 
sessing the  subsequent  equity  had  no  notice  of  the  prior  one 

»  Bassett  v.  Nos worthy,  Finch,  102;  I<L,  2  White  &  T.  Lead.  Gas. 
Eq.  1;  Le  Neve  v.  Le  Neve,  3  Atk.  646;  Id.,  1  Ves.  Sr.  64;  Id.,  2 
White  &  T.  Lead.  Gas.  Eq.  26;  Newton  v.  Newton,  L.  R.  6  Eq.  135. 
Mr.  Pomeroy  (Eq.  Jur.  §  681)  says:  The  equitable  doctrine  concern- 
ing priorities  resulting  from  the  presence  or  absence  of  notice,  or 
of  a  valuable  consideration,  or  other  incident,  by  which  a  precedence 
may  be  given  contrary  to  the  mere  order  of  time,  applies  to  con- 
flicting legal  and  equitable  estates  or  interests  in  the  same  subject- 
matter,  and  to  successive  equitable  estates,  equitable  interests  (such 
as  liens  and  charges),  and  mere  "equities"  (meaning  thereby  purely 
remedial  rights,  such  as  that  of  cancellation,  reformation,  and  the 
like);  and  it  applies  to  no  other  kind  of  estates,  interests,  or  rights. 

§  38.  i  "When  we  say  that  A.  has  a  better  equity  than  B.,  what 
is  meant  by  that?  It  means  only  that,  according  to  those  principles 
of  right  and  justice  which  a  court  of  equity  recognizes  and  acts 
upon,  it  will  prefer  A.  to  B.,  and  will  interfere  to  enforce  the  rights 
of  A.  as  against  B.;  and  therefore  it  is  impossible,  strictly  speaking, 
that  two  persons  should  have  equal  equities,  except  in  a  case  In 
which  a  court  of  equity  would  altogether  refuse  to  lend  its  assist- 
ance to  either  party  as  against  the  other."  Rice  v.  Rice,  2  Drew.  73. 


116  PRIOBITIES    AND   NOTICE.  (Ch.  5 

cannot  entitle  him  to  preference.*  As  an  example  of  the  ap- 
plication of  the  above  rule,  as  between  two  assignees  of  the 
same  mortgage,  the  first  in  order  of  time  is  entitled  to  the 
money  due  thereon,  though  the  second  assignee  took  with- 
out notice  of  the  first,  and  each  gave  notice  of  his  assign- 
ment to  the  mortgagor.8  And  also,  as  between  a  mortgagee 
whose  mortgage  has  been  discharged  of  record,  solely 
through  the  unauthorized  act  of  another,  and  a  purchaser 
who  buys  the  land  in  the  belief,  induced  by  the  cancellation, 
that  the  mortgage  is  satisfied  and  discharged,  the  equities 
are  balanced,  and  the  rights,  in  the  order  of  time,  must  pre- 
vail, and  the  lien  of  the  mortgage  must  remain,  notwithstand- 
ing the  apparent  discharge.* 


SAME— WHERE    ONE    OP    THE    PARTIES    HAS    THE 
LEGAL  ESTATE. 

89.  Where  the  parties  have  equal  equitable  es- 
tates and  interests  in  the  same  subject-mat- 
ter, and  are,  therefore,  both  equally  entitled 
to  the  aid  and  protection  of  a  court  of 
equity,  and  one  of  the  parties  has  acquired 
the  legal  estate  in  such  subject-matter,  a 
court  of  equity  -will  not  interfere,  and  the 
party  who  has  the  legal  estate  will  prevail. 

This  rule  is  based  on  the  maxim  that,  "Where  the  equities 
are  equal,  the  law  will  prevail,"  and  is,  indeed,  a  descriptive 
explanation  of  that  maxim.  An  illustration  of  this  principle 
is  to  be  found  where  one  purchases  trust  property  for  value, 
without  notice  of  the  trust.  The  purchaser  who  has  parted 
with  value  on  the  faith  of  an  apparently  absolute  title  in  the 

«  See  Phillips  v.  Phillips,  4  De  Gex,  F.  &  J.  208,  215;  Cory  v. 
Eyre,  1  De  Gex,  J.  &  S.  149, 167;  Rice  v.  Rice,  2  Drew.  73.  The  opin- 
ion of  the  chancellor  in  this  case  is  quoted  at  length  In  the  note 
under  the  preceding  discussion  of  the  maxim,  "Where  there  are 
equal  equities,  the  first  in  order  of  time  shall  prevail." 

•  Mulr  v.  Schenck,  3  Hill  (N.  T.)  228,  38  Am.  Dec.  633. 

4  Heyder  T.  Association,  42  N.  J.  Eq.  403,  408,  8  Atl.  310. 


§    39)  EQUAL    EQUITIES.  117 

trustee  has  an  equal  equity  with  the  cestuis  que  trustent,  and, 
since  the  deed  from  the  trustee  vests  him  with  the  legal  title, 
equity  will  give  no  assistance  to  beneficiaries  as  against  him.1 
The  rule  is  also  frequently  applied  to  cases  where  the  plain- 
tiff has  a  mere  equity,  as  distinguished  from  an  equitable  es- 
tate, as  a  right  to  rescission  of  a  deed  or  mortgage  for  fraud 
of  the  grantee  or  mortgagee,  or  a  right  to  reformation  for  a 
mistake  in  the  instrument.  It  is  uniformly  held  that  this  re- 
lief will  be  denied  as  against  one  who  has  purchased  the 
legal  title  from  the  grantee  or  mortgagee  for  value,  and  with- 
out notice  of  the  plaintiff's  equities.2  So,  also,  a  conveyance 
void  as  against  the  grantor's  creditors  for  fraud  will  not  be 
set  aside  at  their  suit  as  against  a  bona  fide  purchaser,  for 
value,  from  the  grantee." 

§  39.  i  Wamock  v.  Harlow,  96  Cal.  298,  31  Pac.  166,  31  Am.  St 
Rep.  209.  Purchaser  from  trustee  without  notice  of  construction  or 
resulting  trust  will  be  protected  against  beneficiaries.  Gray  v. 
Coan,  40  Iowa,  827;  Wilson  v.  Land  Co.,  77  N.  C.  445.  So,  also, 
where  a  defective  mortgage  is  executed  by  a  trustee,  and  is  not 
placed  on  record,  a  subsequent  conveyance  of  the  legal  title  to  the 
cestui  quu  trust,  without  notice,  and  for  value,  will  be  protected. 
Fox  v.  Palmer,  25  N.  J.  Eq.  416. 

a  Reformation  of  deed  or  mortgage  for  mistake  denied  as  against 
subsequent  bona  fide  purchasers.  Lough  v.  Michael,  37  W.  Va. 
679,  17  S.  E.  180,  470;  Mayor,  etc.,  of  City  of  Macon  v.  Dasher, 
90  Ga.  195,  16  S.  E.  75;  Toll  v.  Davenport,  74  Mich.  386,  42  N.  W. 
63,  Knobloch  v.  Mueller,  123  111.  554,  17  N.  E.  696;  Garrison  v. 
Orowell,  67  Tex.  626,  4  S.  W.  69;  Whitman  v.  Weston,  30  Me.  285. 
Rescission  denied  as  against  bona  fide  purchaser.  Town  of  Cherry 
Creek  v.  Becker,  123  N.  Y.  161,  25  N.  E.  369  (municipal  bonds);  Det- 
tra  v.  Kestner,  147  Pa.  566,  23  Atl.  889;  Zoeller  v.  Rlley,  100  N.  Y. 
108,  2  N.  E.  388;  Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307;  Halver- 
son  v.  Brown,  75  Iowa,  702,  88  N.  W.  123;  Hewlett  v.  Pllcher,  85  Cal. 
642,  24  Pac.  781;  Dickerson  v.  Evans,  84  111.  451. 

»  Holmes  v.  Gardner,  50  Ohio  St.  167,  33  N.  E.  644;  Sawyer  v. 
Almand,  89  Ga.  314,  15  S.  E.  315;  Blackshire  v.  Pettit,  35  W.  Va. 
547,  14  S.  E.  133;  Fletcher  v.  Peck,  6  Cranch,  87,  133,  134,  3  L. 
Ed.  162;  Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307;  Ledyard  v.  But- 
ler, 9  Paige  (N.  T.)  132,  37  Am.  Dec.  379;  Anderson  v.  Roberts,  18 
Johns.  (N.  Y.)  515,  9  Am.  Dec.  235;  Hood  v.  Fahnestock,  8  Watts 
(Pa.)  489;  Price  v.  Junkln,  4  Watts  (Pa.)  85;  Sydnor  T.  Roberts,  13 
Tex.  598.  65  Am.  Dec.  84. 


118  PRIORITIES    AND    NOTICE.  (Ch.  5 

SUPEBIOB  EQUITIES. 

40.  When  the  legal  title  is  not  involved  in  the 
controversy,  and  there  are  several  unequal 
equities  in  the  same  subject-matter, — as 
where  one  has  a  perfect  equitable  estate, 
and  another  a  mere  equity;  or  where  the 
equitable  interests  of  the  parties  are  of  the 
same  nature,  but  one  is  affected  by  some 
incident  which  renders  it  inferior  to  the 
other, — then  the  superior  equitable  estate  or 
interest  must  prevail,  regardless  of  the  or- 
der of  time.1 

This  proposition  is  necessarily  implied  in  the  maxim, 
"Where  there  are  equal  equities,  the  first  in  order  of  time 
must  prevail."  As  will  be  observed  by  an  examination  of 
this  rule,  the  main  question  to  be  determined  is  in  what  re- 
spect an  equitable  interest  or  estate  may  be  deemed  superior. 
Some  general  rules  may  be  stated,  which  will  be  of  use  in 
determining  this  question. 


SAME  — SUPERIORITY     OP     ESTATE     CREATED    BY 
TRUST  OR  CONTRACT. 

41.  An  equitable  interest  or  estate,  created  by 
a  trust  or  a  contract  in  rem  founded  on  a 
valuable  consideration,  is  superior  to  an 
equity  arising  from  a  voluntary  transfer  or 
gift,  or  under  a  lien  by  judgment. 

This  rule  is  based  upon  the  fact  that  a  claimant  under  a 
trust  or  contract  in  rem  has  an  equitable  interest,  in  the  na- 
ture of  property,  in  the  specific  thing  itself,  which  is  binding 
on  the  conscience  of  the  original  holder;  but  the  voluntary 

f  40.    i  Poin.  Eq.  Jar.  $  682. 


§   42)  SUPERIOR   EQUITIES.  119 

transferee  or  donee  has  only  such  an  interest  as  the  donor 
could  honestly  give.1  The  donee  or  transferee  can  possess 
no  paramount  right  in  the  property  as  against  third  persons 
dealing  with  the  donor  in  respect  to  the  same  property.  In 
the  former  case  the  equitable  interest  or  estate  is  based  upon 
a  valuable  consideration,  but  in  the  case  of  a  voluntary  gift 
or  transfer  there  is  no  such  consideration.  As  an  illustra- 
tion of  this  rule,  a  recent  case  may  be  mentioned.  A  woman 
had  been  induced  to  marry  a  man  on  the  faith  of  his  promise 
to  convey  certain  land  to  her.  Instead  of  so  doing,  he  con- 
veyed it,  by  way  of  gift,  to  a  son  by  a  former  wife.  It  was 
held  that  the  second  wife's  equity  to  the  land  was  superior 
to  the  legal  title  of  the  son,  though  he  knew  nothing  of  his 
father's  fraud,  because  a  mere  volunteer,  however  innocent, 
cannot  retain  the  fruits  of  the  fraud.* 


SAME— EQUITY  IN  SPECIFIC  THING. 

42.  An  equity  in  a  specific  thing  or  a  specific  lien 
is  superior  to  an  equity  general  in  its  scope 
and  nature. 

The  lien  of  a  judgment  is  general,  not  specific.  The  ben- 
eficiary under  a  trust,  the  holder  of  a  lien  created  by  a  con- 
tract in  rem,  or  a  vendee  under  a  contract  of  sale  has  an 
equitable  interest  in  a  specific  thing  concerning  which  he  has 
dealt ;  but  a  judgment  creditor  has  not  advanced  his  money 
or  allowed  the  existence  of  his  debt  on  a  specific  security. 
He  has  not  parted  with  value  in  contemplation  of  a  specific 
thing,  and  is  entitled  only  to  such  interests  as  were  possessed 
by  the  debtor  at  the  date  of  the  judgment.  Therefore,  in  the 
absence  of  an-express  statute,  the  lien  of  a  mortgage  on  spe- 
cific land,  though  not  recorded,  is  superior  to  the  general  lien 
of  a  subsequent  judgment  against  the  mortgagor.1  A  vend<« 

§  41.     i  Green  v.  Givan,  33  N.  Y.  343. 

2  Peek  v.  Peek,  77  Gal.  106,  19  Pac.  227,  1  L.  R  A.  185. 

§  42.  i  Sappington  v.  Oeschli,  49  Mo.  244;  Carraway  v.  Carraway, 
27  S.  C.  576,  5  S.  E.  157;  Churchill  v.  Morse,  23  Iowa,  229,  92  Am. 
Dec.  422;  Jackson  v.  Dubois,  4  Johns.  (N.  Y.)  216;  Hunter  v.  Wat- 
son, 12  Cal.  263,  73  Am.  Dec.  543.  A  contrary  rule,  however,  pre- 
vails in  other  states,  chiefly  by  virtue  of  statutory  provisions. 


120  PRIORITIES    AND   NOTICE.  (Ch.  5 

under  an  unrecorded  deed  is  entitled  to  priority  over  a  subse- 
quent judgment  against  the  grantor.2  But,  if  the  land  is 
sold  under  such  a  judgment,  the  purchaser,  upon  placing 
the  sheriff's  deed  on  record,  will  be  protected  against  a  prior 
unrecorded  mortgage,  since  the  sheriff's  deed  is  treated  as 
if  given  by  the  judgment  debtor  himself,  and  conveys  pre- 
cisely the  same  interests  as  he  could  have  conveyed  at  the 
time  the  judgment  was  docketed.8  The  specific  lien  of  a 
purchase-money  mortgage  executed  contemporaneously  with 
the  deed  is  superior  to  the  general  lien  of  a  judgment  exist- 
ing against  the  mortgagor  at  the  time  of  the  execution  of 
such  mortgage.4  This  is  so  in  view  of  the  foregoing  rule, 
although  some  of  the  cases  assign  the  reason  to  be  that  the 
mortgagor  only  possesses  an  instantaneous  seisin,  and  there- 
fore the  judgment  cannot  attach. 


SAME— EQUITY  OF  PARTY  MISLED. 

43.  The  equity  of  the  party  misled  is  superior  to 
the  equity  of  the  party  who  has  willfully 

misled  him. 

The  rule  has  been  thus  stated :  "If  a  man,  by  the  suppres- 
sion of  the  truth,  which  he  was  bound  to  communicate,  or 
by  the  suggestion  of  a  falsehood,  be  the  cause  of  prejudice 
to  another,  who  had  a  right  to  a  full  and  correct  representa- 
tion of  the  fact,  it  is  certainly  agreeable  to  the  dictates  of 
good  conscience  that  his  claim  should  be  postponed  to  that 
of  the  person  who  was  misled  by  his  representation."  l  This 

Vreeland  v.  Clafflin,  24  N.  J.  Eq.  313;  McFadden  T.  Worthlngton,  45 
111.  3(52;  Young  v._Devrles,  31  Grat  (Va.)  304;  Humphreys  v.  Mer- 
rill, 52  Miss.  92;  Andrews  v.  Matbews,  59  Ga.  466;  Anderson  v. 
Nagle.  12  W.  Va.  98;  Cavanaugh  v.  Peterson,  47  Tex.  198. 

•  Schroeder  v.  Gurney,  73  N.  Y.  430;  Harral  v.  Gray,  10  Neb. 
186,  4  N.  W.  1040. 

»  Hetzel  v.  Barber,  69  N.  Y.  1,  9;  McKnlght  Y.  Gordon,  18  Rich. 
Eq.  (S.  C.)  222,  94  Am.  Dec.  164. 

«  Stewart  v.  Smith,  36  Minn.  82,  30  N.  W.  430,  1  Am.  St  Rep.  651; 
Roane  v.  Baker,  120  111.  308,  11  N.  E.  246;  Curtis  v.  Root,  20  ID 
54;  Bradley  v.  Bryan,  43  N.  J.  Eq.  396,  13  AtL  806. 

j  43.     i  Fonbl.  Eq.  64, 


§   43)  SUPERIOR    EQUITIES.  121 

rule  is  but  an  application  of  the  general  principle  with  respect 
to  fraud,  where  the  fraud  consists  of  representations  known 
by  the  party  making  them  to  be  expressly  or  impliedly  false. 
Its  meaning  is  that,  where  a  person,  having  an  equitable  or 
other  interest  in  an  estate,  knowingly  misleads  another  into 
dealing  with  the  same  estate,  as  if  he  had  no  such  interest, 
his  equity  will  be  postponed  to  that  of  the  party  misled,  and 
he  will  be  compelled  to  make  good  his  representations.  If 
a  person  intending  to  purchase  an  estate  or  to  advance 
money  thereon  inquires  of  another  person  whether  he  has 
any  claim  thereon,  stating  at  the  same  time  that  he  proposes 
to  purchase  such  estate,  or  to  make  a  loan  thereon,  and  he  is 
falsely  informed  by  such  other  person  that  he  has  no  such 
claim,  equity  will  protect  the  person  misinformed.2  And 
where  a  per.son  having  a  deed  of  land  keeps  it  secret  for 
many  years,  and  knowingly  suffers  third  persons  to  purchase 
parts  of  the  same  premises  from  the  reputed  owner,  who 
was  in  possession,  and  to  expend  money  on  the  land  without 
any  notice  of  his  claim  he  will  not  be  permitted  to  assert  his 
legal  title  against  such  innocent  and  bona  fide  purchasers.8 
It  is,  in  equity,  an  act  of  fraud  for  a  party  cognizant  of  his 
own  right  to  suffer  another  party  to  purchase  the  property  in 
ignorance  of  that  right,  or  expend  money  in  making  im- 
provements on  it.4  But,  where  there  is  no  duty  imposed  on 
the  owner  to  speak,  the  owner  cannot  be  estopped  from  as- 
serting his  title.6  To  authorize  the  intervention  of  equity  in 

2  Otis  v.  Sill,  8  Barb.  (N.  Y.)  102;  Storrs  v.  Barker,  6  Johns.  Ch. 
(N.  Y.)  1GG,  168,  10  Am.  Dec.  316;  Lesley  v.  Johnson,  41  Barb.  (N.  Y.) 
359;  Baker  v.  Humphrey,  101  U.  S.  494,  25  L.  Ed.  1065;  Hendricks 
v.  Kelly,  64  Ala.  388;  Alexander  v.  Ellison,  79  Ky.  148;  Hill  v. 
Black  welder,  113  111.  283;  Guffey  v.  O'Reiley,  88  Mo.  418,  57  Am. 
Rep.  424;  Race  v.  Groves,  43  N.  J.  Eq.  284,  7  Atl.  667;  Putnam  v. 
Tyler,  117  Pa.  570,  12  Atl.  43. 

»  Wendell's  Ex'rs  v.  Van  Rensselaer,  1  Johns.  Ch.  (N.  Y.)  344, 
854;  Storrs  v.  Barker,  6  Johns.  Ch.  (N.  Y.)  166;  Nicholson  v.  Hooper, 
4  Mylne  &  C.  179;  Carr  v.  Wallace,  7  Watts  (Pa.)  400;  Chapman  v. 
Pingree,  67  Me.  198;  Kirk  v.  Hamilton,  102  U.  S.  68,  26  L.  Ed.  79; 
Slocumb  v.  Railroad  Co.,  57  Iowa,  675,  11  N.  W.  641. 

*  Storrs  v.  Barker,  6  Johns.  Ch.  (N.  Y.)  166,  168.  See,  also,  Town 
Y.  Needham,  3  Paige  (N.  Y.)  545;  Thompson  v.  Blanchard,  4  N.  Y. 
303;  Trenton  Banking  Co.  v.  Duncan,  86  N.  Y.  221;  New  York  Rubber 
Co.  v.  Rothery,  107  N.  Y.  310,  315,  14  N.  E.  269,  1  Am.  St  Rep.  822. 

6  New  York  Rubber  Co.  v.  Rothery,  107  N.  Y.  310,  14  N.  E.  269, 
1  Am.  St.  Rep.  822. 


122  PRIORITIES    AND   NOTICE.  (Ch.  5 

such  cases  there  must  be  either  an  actual  intention  to  mis- 
lead, or  that  degree  of  gross  negligence  which  is  the  same  in 
its  effects  as  an  intentional  deception.  Mere  carelessness 
or  want  of  prudence  on  the  part  of  the  owner  of  the  prior 
legal  estate  will  not  justify  a  postponement  of  such  estate 
to  the  subsequent  equitable  estate.*  As,  for  instance,  a  legal 
owner  whose  title  is  on  record,  will  not  be  postponed  merely 
because  he  remained  silent  while  another  dealt  with  the 
property  as  his  own.7  This  rule  bears  an  analogy  to  the 
equitable  doctrine  of  estoppel,  which  is  the  subject  of  a  sub- 
sequent chapter  of  this  work,  to  which  reference  may  be  made 
for  a  more  comprehensive  discussion  of  this  question.* 


SAME— NOTICE  OP  AN  EQUITY. 

44.  One  taking  with  notice  of  an  equity  takes  sub- 
ject to  that  equity. 

The  meaning  of  this  rule  is  that,  if  a  person  acquiring 
cither  a  legal  or  equitable  estate  or  interest  has,  at  the  time 
of  acquisition,  notice  of  an  existing  claim,  interest,  or  estate 
in  the  same  subject-matter  possessed  by  a  third  person,  he 
will  be  held  to  have  acquired  only  such  an  interest  or  estate 

•  Briggs  v.  Jones,  L.  R.  10  Eq.  92.    In  this  case  a  first  equitable 
mortgagee  left  the  deeds  with  the  mortgagor  to  enable  him  to  raise 
money  on  a  mortgage  of  the  equity  of  redemption,  and  the  mort- 
gagor, taking  advantage  of  this,  and  suppressing  the  fact  of  the 
first  mortgage,  effected  another  mortgage.    On  these  facts  it  was 
held  that  the  second  mortgagee  was  entitled  to  priority  over  the 
first,  for  it  was  owing  to  the  carelessness  of  the  first  that  the  mort- 
gagor was  enabled  to  perpetrate  the  fraud,  and  therefore  equity 
would   not   assist   him   against  the  second   mortgagee.    Northern 
Counties  of  Eng.  Fire  Ins.  Co.  v.  Whlpp,  26  Oh.  Div.  482,  where  the 
court  of  appeals  laid  down  the  rule  that  a  legal  mortgagee  will  not 
be  deprived  of  the  benefit  of  the  legal  estate  on  the  ground  of  mere 
carelessness  or  want  of  prudence,  unless  he  has  assisted  or  con- 
nived at  the  fraud.    See,  also,  Manners  v.  Mew,  29  Ch.  Dlv.  725; 
Union  Bank  of  London  v.  Kent,  39  Ch.  Div.  238;  Heyder  v.  Associa- 
tion, 42  N.  J.  Eq.  403,  8  Atl.  310. 

i  Clabaugh  v.  Byerly,  7  Gill  (Md.)  354,  48  Am.  Dec.  575;  Groundle 
T.  Water  Co.,  7  Pa.  239;  Knouff  v.  Thompson,  16  Pa.  361,  363; 
Hill  v.  Epley,  31  Pa.  331;  Neal  v.  Gregory,  19  Fla.  356. 

•  Post,  c.  7. 


§§  45-46)  NOTICE.  123 

as  the  owner  could  honestly  transfer.  This  rule  is  of  almost 
universal  application.  It  affects  all  kinds  of  equitable  in- 
terests and  estates.  Its  discussion  necessarily  involves  a 
consideration  of  the  whole  subject  of  notice,  and  therefore  it 
cannot  be  deemed  an  impropriety  to  follow  what  has  already 
been  said  concerning  the  superiority  of  equities  with  a  con- 
sideration of  this  equitable  doctrine.1 


NOTICE— DEFINITION. 

45.  Notice  is  information  concerning  a  certain  fact, 

either  directly  communicated  to  a  party  by 
an  authorized  person,  or  actually  received 
by  him  from  a  proper  source,  or  presumed 
by  law  to  have  been  communicated  to  or 
acquired  by  him. 

46.  Such  notice  may  not  be  actual  knowledge,  but 

the  legal  effects  and  consequence  are  the 
same  as  though  the  party  had  full  knowl- 
edge of  the  fact.1 

The  doctrine  of  notice  is  of  equitable  origin,  and  almost 
exclusively  of  equitable  application.  The  rights  of  claim- 
ants to  purely  legal  estates  are  not  affected  by  the  presence 
or  absence  of  notice  of  the  existing  adverse  claims.  A  valid 
legal  title  will  be  maintained  in  a  court  of  law  regardless 
of  the  existence  of  equitable  interests  and  estates  in  the  same 
subject-matter.  This  doctrine,  as  in  the  case  of  the  doctrine 
concerning  priorities,  is  a  growth  of  the  application  of  the 

§  44.  i  "Notice,  although  a  collateral  incident,  Is  thus,  perhaps, 
the  most  powerful  element  In  creating  a  superiority,  and  in  dis- 
turbing an  order  of  priority  which  would  otherwise  have  existed. 
It  may  destroy  the  precedence  which  a  legal  estate  ordinarily 
has  over  an  equitable  one;  it  may  operate  as  well  between  legal 
and  equitable  estates,  In  the  same  thing,  as  between  successive 
estates  or  Interests  which  are  purely  equitable."  Pom.  Bq.  Jur.  J 
689. 

S§  45-46.    »  Pom.  Eq.  Jur.  §  594. 


124  PRIORITIES    AND   NOTICE.  (Ch.  5 

two  maxims :  "Where  the  equities  are  equal,  the  one  which 
is  prior  in  time  must  prevail,"  and,  "Where  the  equities  are 
equal,  the  law  must  prevail."  In  the  application  of  such  prin- 
ciples the  main  question  to  be  determined  is  whether  or  not 
the  equities  are  equal.  It  is,  as  we  have  seen,  a  general,  and 
most  important,  rule  in  equity  that, 'where  one  acquires  an 
estate  with  notice  of  existing  equities  therein,  he  takes  the 
estate  subject  to  such  equities ;  in  other  words,  the  equities 
of  which  he  had  legal  knowledge  render  his  rights  so  ac- 
quired subservient  to  such  equities.  The  doctrine  has  been 
thus  enunciated:  A  person  who  purchases  an  estate,  al- 
though for  a  valuable  consideration,  after  notice  of  a  prior 
equitable  right,  makes  himself  a  mala  fide  purchaser,  and  he 
will  not  be  enabled,  by  getting  in  the  legal  estate,  to  defeat 
such  prior  equitable  interest,  but  will  be  held  a  trustee  for 
the  benefit  of  the  person  whose  rights  he  sought  to  defeat.* 
It  may  thus  be  seen  that  notice  is  a  most  important  element 
in  determining  the  equalities  of  equitable  rights,  estates, 
and  interests.  Before  proceeding  to  a  further  consideration 
of  the  subject,  it  will  be  well  to  note  the  fact  that,  technically 
speaking,  legal  notice  is  not  always  knowledge,  although  in 
many  cases  the  consequent  effects  produced  by  each  are  the 
same.  Notice,  as  applicable  to  conveyances,  does  not  neces- 
sarily mean  actual  knowledge.  The  notice  may  be  implied 
from  indirect  and  circumstantial  evidence,  and  may  be  held 
to  exist  even  where  there  is  an  entire  absence  of  knowledge.8 
The  record  of  a  deed  or  mortgage  is  constructive  notice  to 
subsequent  purchasers  and  incumbrancers,  but  it  does  not 
necessarily  convey  knowledge  to  such  persons  of  the  exist- 
ence of  such  deed  or  mortgage.  On  the  other  hand,  if 
actual  knowledge  of  a  certain  fact  is  possessed  by  a  party, 
even  if  such  knowledge  cannot  correctly  be  deemed  a  tech- 
nical "notice,"  he  will  be  held  to  have  acted  with  reference  to 

«  Le  Neve  T.  Le  Neve,  8  Atk.  646;  Id.,  1  Ves.  Sr.  64;  Id.,  2  White 
ft  T.  Lead.  Cas.  Eq.  (Text-Book  Series)  26. 

•  Knapp  v.  Bailey,  79  Me.  195,  9  Atl.  122,  1  Am.  St  Rep.  295. 
To  constitute  actual  knowledge,  there  must  be  direct  and  positive 
Information  of  the  fact  Itself;  but  a  knowledge  of  such  facts  as 
will  lead  upon  Inquiry  to  actual  knowledge  Is  sufficient  to  constitute 
•ctual  notice.  Cleveland  Woolen  Mills  v.  Sibert,  81  Ala.  140,  1 
South,  778;  Brink  man  T.  Jonea,  44  Wls.  498. 


§§  47-49)  NOTICE.  125 

such  knowledge,  and  the  effect  will  be  the  same  as  though 
he  had  had  actual  notice4 


SAME— KINDS  OF  NOTICE. 

47.  Notice  is  of  two  kinds: 

(a)  Actual,  or 

(b)  Constructive. 

48.  Actual  notice  consists  in  information  of  a  fact 

directly  communicated  to  a  person,  or  of 
such  information  as  would  lead  to  knowl- 
edge of  such  fact. 

49.  Constructive  notice  is  such   information   of  a 

fact  as  a  person  will  be  legally  presumed  to 
possess  from  the  existence  of  established 
facts.1 

«  Pom.  Eq.  Jur.  §  592.  Lloyd  v.  Banks,  L.  R.  3  Ch.  488,  490, 
where  Lord  Cairns  said,  in  considering  an  incumbrance  on  a  trust 
fund  of  which  it  was  alleged  the  trustee  had  no  notice,  but  was 
proved  to  have  had  knowledge:  "If  it  can  be  shown  that  in  any 
way  the  trustee  has  got  knowledge  of  that  kind,— knowledge  which 
would  operate  upon  the  mind  of  any  rational  man,  or  man  of  busi- 
ness, and  make  him  act  with  reference  to  the  knowledge  he  has 
so  acquired, — there,  I  think,  the  end  is  attained,  and  there  has  been 
fixed  on  the  conscience  of  the  trustee,  and,  through  that,  on  the 
trust  fund,  a  security  against  its  being  parted  with  in  any  way 
that  would  be  inconsistent  with  the  incumbrance  which  has  been 
created." 

§§  47-49.  i  Notice  is  of  two  kinds,— actual  and  constructive. 
Actual  notice  embraces  all  degrees  and  grades  of  evidence  from 
the  most  direct  and  positive  proof  to  the  slightest  circumstances 
from  which  a  Jury  would  be  warranted  in  inferring  notice.  It  is  a 
mere  question  of  fact,  and  is  open  to  every  species  of  legitimate  evi- 
dence which  may  tend  to  strengthen  or  impair  the  conclusion.  Con- 
structive notice,  on  the  other  hand,  is  a  legal  inference  from  estab- 
lished facts;  and,  like  other  legal  presumptions,  does  not  admit 
of  dispute.  Williamson  v.  Brown,  15  N.  Y.  354,  359.  Constructive 
notice  has  been  defined  as  being  in  its  nature  no  more  than  evi- 
dence of  notice,  the  presumptions  of  which  are  so  violent  that  the 
court  will  not  allow  of  its  being  controverted.  Plumb  v.  Flultt,  2 
Aust  432,  by  Chief  Baron  Eyre.  See,  also,  Mayor,  etc.,  of  City  of 


126  PR10KITIES    AND    NOTICE.  (Ch.   6 

Some  difficulties  and  confusion  have  arisen  from  attempted 
classifications  of  notice.  Text-book  writers  and  judges  have 
differed  as  to  what  is  the  line  of  distinction  between  actual 
and  constructive  notice.  In  many  instances  constructive 
notice  has  been  declared  to  be  the  same  as  implied  notice.2 
Knowledge  or  information  of  facts  sufficient  to  put  a  party 
on  an  inquiry  has  often  been  considered  as  a  peculiar  char- 
acteristic of  constructive  notice.  But  it  has  been  stated  that 
the  difference  between  implied  and  constructive  notice  is  that 
the  former  is  an  inference  of  fact,  which  is  capable  of  being 
explained  or  contradicted,  while  the  latter  is  a  conclusion  of 
law,  which  cannot  be  controverted.'  This  difference  of 
classification  is  not  of  much  practical  importance,  since  the 
ultimate  result  in  both  classes  of  notice  is  the  same.  If  no- 
tice can  be  charged  to  determine  the  superiority  of  equitable 
interests  or  estates,  it  does  not  change  the  result  by  denomi- 
nating such  notice  either  "actual"  or  "constructive."  But 
in  statutes  declaring  the  effect  of  notice  upon  the  title  of  a 
purchaser  for  a  valuable  consideration  the  term  generally 
used  is  "actual  notice,"  and  then  it  becomes  necessary  to 
determine  what  will  constitute  such  a  notice. 

Baltimore  v.  Williams,  6  Md.  235;  Harper  v.  Ely,  56  111.  194;  Knapp 
T.  Bailey,  79  Me.  195,  9  Atl.  122,  1  Am.  St  Rep.  295.  In  this  latter 
case  Chief  Justice  Peters,  in  discussing  actual  notice,  says:  "It 
amounts  substantially  to  this:  that  actual  notice  may  be  proved 
by  direct  evidence,  or  It  may  be  inferred  or  implied  (that  Is,  proved) 
as  a  fact  from  Indirect  evidence,— by  circumstantial  evidence.  A 
man  may  have  notice,  or  Its  legal  equivalent.  *  *  *  The  decided 
preponderance  of  authority  supports  the  position  that  the  statutory 
'actual  notice'  is  a  conclusion  of  fact  capable  of  being  established 
by  all  grades  of  legitimate  evidence."  See,  also,  Claflin  v.  Lenhelm, 
66  N.  Y.  301,  306;  Birdsall  v.  Russell,  29  N.  Y.  220,  249;  Bailey  v. 
Galpin.  40  Minn.  319,  324.  41  N.  W.  1051. 

*  Sterry  v.  Arden,  1  Johns.  Ch.  (N.  Y.)  261,  where  Chancellor  Kent 
said:  "I  hold  him  chargeable  with  constructive  notice,  or  notice  In 
law,  because  he  had  Information  sufficient  to  put  him  upon  In* 
qulry." 

«  Drey  T.  Doyle,  99  Mo.  459,  12  S.  W.  287. 


§   50)  ACTUAL   NOTICE.  127 


ACTUAL  NOTICE. 

60.  Actual  notice  may  be  either  express  or  im- 
plied. 

(a)  Express  actual  notice  is  information  of  a  fact 

directly  communicated  to  a  person,  either 
in  writing  •  or  orally,  by  a  person  having 
knowledge  of  the  fact  communicated. 

(b)  Implied  actual  notice  is   such  information  of 

a  fact  as  a  person  will  be  presumed  to  have 
received  from  a  knowledge  of  circum- 
stances proved  to  have  been  possessed  by 
such  person. 

In  the  English  conveyancing  act  of  1882  the  terms  "actual 
notice"  and  "constructive  notice"  are  defined.  In  this  stat- 
ute the  term  "actual  notice"  is  limited  to  actual  knowledge. 
Many  American  courts  have  adopted  these  definitions,1  but 
for  the  most  part,  even  in  considering  the  effects  of  statutes 
declaring  that  a  purchaser  with  actual  notice  of  a  prior  un- 
recorded deed  takes  subject  to  that  deed,  our  courts  have 
extended  the  meaning  of  the  term  "actual  notice,"  so  that 
notice  is  held  to  be  actual  where  the  subsequent  purchaser 
has  actual  knowledge  of  such  facts  as  would  put  a  prudent 
man  on  inquiry,  which,  if  prosecuted  with  ordinary  diligence, 
would  lead  to  actual  notice  of  the  right  or  title  in  conflict 
with  that  which  he  is  about  to  purchase.8  Actual  notice  is 

5  50.  i  Lamb  v.  Pierce,  113  Mass.  72;  Crassen  v.  Swoveland,  22 
Ind.  428.  In  the  English  Conveyancing  Act  of  1882  actual  notice 
Is  defined  as  "an  instrument,  fact,  or  thing  within  the  party's  own 
knowledge";  and  constructive  or  implied  notice  Is  defined  as  "an 
instrument,  fact,  or  thing  which  would  have  come  to  the  party's 
knowledge  if  such  inquiries  and  inspections  had  been  made  as  ought 
reasonably  to  have  been  made  by  him,  or  which  (in  the  same  trans- 
action with  respect  to  which  the  question  of  notice  arises)  have 
come  to  the  knowledge  of  his  counsel,  agent,  or  solicitors  as  such, 
or  would  have  come  to  the  knowledge  of  such  solicitor  or  agent  If 
such  inquiries  had  been  made  as  ought  to  have  been  made  by 
them."  45  &  46  Viet.  c.  39. 

*  Brinkman  T.  Jones,  44  Wis.  498;  Brown  T.  Volkenlng,  64  N.  T. 


128  PRIORITIES    AND    NOTICE.  (Ch.  5 

not  necessarily  confined  to  such  notice  as  comes  from  actual 
knowledge.  Actual  notice  may  be  such  information  of  the 
fact  as  a  person  may  fairly  be  inferred  to  possess  from  the 
proof.  Whether  such  proof  be  positive,  direct,  and  con- 
vincing, or  indirect  and  circumstantial,  is  immaterial.  Proof 
of  circumstances  short  of  what  will  constitute  actual  knowl- 
edge, which  should  put  a  prudent  man  upon  inquiry,  author- 
izes the  court  or  jury  to  infer  and  find  actual  notice.*  Mr. 
Justice  Taylor,  in  a  much-quoted  Wisconsin  case,4  says: 
"We  think  the  true  rule  is  that  notice  must  be  held  to  be 
actual  when  the  subsequent  purchaser  has  knowledge  of 
such  facts  as  would  put  a  prudent  man  upon  inquiry,  which, 
if  prosecuted  with  ordinary  diligence,  would  lead  to  actual 
notice  of  the  right  or  title  in  conflict  with  that  which  he  is 
about  to  purchase.  When  the  subsequent  purchaser  has 
knowledge  of  such  facts,  it  becomes  his  duty  to  make  inquiry, 
and  he  is  guilty  of  bad  faith  if  he  neglects  to  do  so ;  and  con- 
sequently he  will  be  charged  with  the  actual  notice  he  would 
have  received  if  he  had  made  the  inquiry."  While  a  purchas- 
er is  not  required  to  use  the  utmost  circumspection,  he  is 
bound  to  act  as  an  ordinarily  prudent  and  careful  man  would 
do  under  the  circumstances.  He  cannot  act  in  contravention 
to  the  dictates  of  reasonable  prudence,  or  refuse  to  inquire 


76;  Rhodes  v.  Outcalt,  48  Mo.  370;  Mayor,  etc.,  of  Olty  of  Baltimore 
Y.  Whittington,  78  Md.  231,  27  Atl.  884;  Ross  v.  Cay  wood,  16  App. 
Div.  591,  44  N.  Y.  Supp.  985. 

•  Brown  v.  Volkening,  64  N.  T.  76,  82;  Gollober  v.  Martin,  3? 
Kan.  252,  6  Pac.  267;  Trustees  of  Schools  of  Sheik,  119  111.  579,  8  N. 
E.  189;  Connecticut  Mut  Life  Ins.  Co.  v.  Smith,  117  Mo.  261,  22 
8.  W.  623;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Kennedy,  70  111.  350,  361; 
Shepardson  v.  Stevens,  71  111.  646;  Erickson  y.  Rafferty,  79  111. 
209,  212;  Reynolds  v.  Ruckman,  85  Mich.  80;  Shotwell  v.  Harrison, 
80  Mich.  179;  Munroe  v.  Eastman,  31  Mich.  283;  Hunt  v.  Dunn, 
74  Ga.  124;  Clark  v.  Holland,  72  Iowa,  34,  33  N.  W.  350;  Knapp  v. 
Bailey,  79  Me.  195,  9  Atl.  122;  Oliver  v.  Sanborn,  60  Mich.  346, 
27  N.  W.  527;  Gaines  v.  Summers,  60  Ark.  822,  7  S.  W.  301. 

«  Brinkman  v.  Jones,  44  Wis.  498.  To  the  same  effect  is  Maupln 
T.  Emmons.  47  Mo.  304,  306,  807.  And  see,  also,  Anthony  T.  Wheeler, 
130  111.  128,  22  N.  E.  494.  Notice  of  a  prior  unrecorded  deed  will 
be  charged  to  a  subsequent  purchaser  if  the  exercise  of  ordinary 
prudence  and  care  would  have  led  him  to  knowledge.  Morrison  v. 
Kelly.  22  111.  610,  74  Am.  Dec.  169;  Kirsch  T.  Tozler,  143  N.  Y. 
890,  38  N.  El  375. 


§    50)  ACTUAL   NOTICE.  129 

when  the  propriety  of  inquiry  is  naturally  suggested  by  cir- 
cumstances known  to  him.8 

What  Information  Sufficient  to  Constitute  Actual  Notice, 
The  foregoing  discussion  shows  the  importance  of  deter- 
mining what  amount  of  information  is  sufficient  to  charge  a 
purchaser — a  person  obtaining  any  right  in  specific  property 
— with  notice  of  a  prior  conflicting  claim  upon  the  same 
property.  The  notice  must  be  based  on  definite  and  certain 
information.  Vague  reports  from  outside  parties,  who  are 
not  interested  in  the  property,  will  not  constitute  notice.8 
To  charge  a  purchaser  with  a  notice  of  a  prior  conflicting 
claim,  the  information  acquired  by  him  must  be  such  that, 
if  he  had  inquired  with  due  diligence  into  the  existence  of 
such  claim,  it  would  have  become  apparent.  There  must  ap- 
pear to  be,  in  the  nature  of  the  case,  such  a  connection  be- 
tween the  facts  discovered  and  the  further  facts  to  be  discov- 
ered that  the  former  may  be  said  to  furnish  a  reasonable 
and  natural  clue  to  the  latter.7  It  has  been  stated  as  a 
general  rule  that  the  notice  must  come  from  some  person 
who  is  interested  in  the  property,  or  his  agent,  and  be  com- 
municated directly  to  the  party  to  be  charged  with  the  no- 
tice, on  the  theory  that  a  purchaser  is  not  bound  to  attend 
to  statements  of  mere  strangers.8  But  this  does  not  seem 
to  be  generally  accepted  as  a  true  principle.  It  is  in  contra- 

B  Kirsch  v.  Tozier,  143  N.  Y.  390,  397,  38  N.  E.  375,  42  Am.  St. 
Rep.  729.  Having  readily  accessible  means  of  acquiring  knowledge 
of  a  fact  which  he  might  have  ascertained  by  inquiry  Is  equivalent 
to  notice  and  knowledge  of  it.  Montgomery  v.  Keppel,  75  Cal.  128, 
19  Pac.  178,  7  Am.  St.  Rep.  125.  See,  also,  Fresno  Canal  &  Irriga- 
tion Co.  v.  Rowell,  80  Cal.  114,  22  Pac.  53,  13  Am.  St.  Rep.  112;  Hoy 
v.  Bramhall,  19  N.  J.  Eq.  563,  97  Am.  Dec.  687;  Booth  v.  Barnum,  9 
Conn.  286,  23  Am.  Dec.  339. 

«  Jolland  v.  Stalnbridge,  3  Ves.  478;  Maul  v.  Rider,  59  Pa.  172; 
City  of  Chicago  v.  Witt,  75  111.  211;  Lambert  v.  Newman,  56  Ala. 
623,  625,  626;  Packer  v.  Foy,  43  Miss.  260,  266,  55  Am.  Rep.  484; 
Bugbee's  Appeal,  110  Pa.  831,  1  Atl.  273;  Satterfield  v.  Malone 
(O.  C.)  35  Fed.  445,  1  L.  R.  A.  35. 

i  Page  v.  Waring,  76  N.  Y.  463,  471;  Blrdsall  v.  Russell,  29  N.  Y. 
220;  Tompkins  v.  Henderson,  83  Ala.  391,  3  South.  774. 

s  Butler  v.  Stevens,  26  Me.  484;  City  Council  of  Charleston  v. 
Page,  1  Speer,  Eq.  (S.  C.)  159;  Lamont  v.  Stimson,  5  Wls.  443; 
Churcher  v.  Guernsey,  39  Pa.  86;  Woods  v.  Farmere,  7  Watts  (Pa.) 
382,  387,  32  Am.  Dec.  772;  Barnhart  v.  Greenshields,  9  Moore,  P.  C. 
18. 

EATON, Eq.—O 


130  PRIORITIES    AND    NOTICE.  (Ch.  5 

vcntion  of  the  principle  involved  in  the  rule  that  a  person  is 
charged  with  actual  notice  who  has  knowledge  of  such  facts 
as  are  sufficient  to  put  a  prudent  man  on  inquiry,  and  are  of 
such  a  nature  that,  if  the  inquiry  was  prosecuted  with  reason- 
able diligence,  the  conflicting  claim  would  be  disclosed. 
Knowledge  is  the  essential  part  of  this  rule.  If  the  knowl- 
edge is  acquired,  it  matters  little  from  what  source  it  came.9 
The  correct  rule  is  that  notice  need  not  come  from  a  party 
or  his  agent,  but  it  is  sufficient  if  it  be  derived  aliunde,  pro- 
vided it  be  of  a  character  likely  to  gain  credit.10  Except 
where,  by  a  positive  rule  of  law,  an  actual,  technical  notice 
from  one  party  to  another  is  required  in  order  to  put  a  per- 
son in  default,  or  to  perfect  some  legal  right,  actual  knowl- 
edge, however  acquired,  is  the  same  in  its  effects  on  the 
rights  and  interests  of  parties  as  actual  notice.11 

It  is  not  practicable  to  lay  down  definite  rules  to  deter- 
mine the  nature  or  amount  of  information  required  to  charge 
a  person  with  notice  of  an  existing,  outstanding  claim  or 
interest  in  conflict  with  the  interest  which  he  has  acquired, 
beyond  the  general  proposition,  above  stated,  that,  if  a  per- 
son have  information  which  would  induce  a  man  of  ordinary 
intelligence  and  prudence  to  make  inquiry  as  to  the  existence 
of  a  claim  or  interest  in  conflict  with  the  estate  which  he  con- 
templates acquiring,  and  he  fails  or  neglects  to  make  that 
inquiry,  he  will  be  presumed  to  possess  actual  notice  of  the 
facts  which  such  an  inquiry  would  have  disclosed.12  The 

•  Lloyd  v.  Banks,  3  Ch.  App.  488,  where  It  was  said,  la  consider- 
ing a  case  where  it  was  shown  that  the  knowledge  possessed  by  a 
trustee  came  from  a  newspaper  item:  "If  It  can  be  shown  that  In 
any  way  the  trustee  had  got  knowledge  of  that  kind, — knowledge 
which  would  operate  on  the  mind  of  any  rational  man,  or  man  of 
business,  and  make  him  act  with  reference  to  the  knowledge  he 
has  or  acquired, — then  I  think  the  end  is  attained." 

10  Parkhurst  v.  Hosford  (C.  C.)  21  Fed.  827,  835;  Ourtls  v.  Mundy, 
8  Mete.  (Mass.)  405;  Wilcox  T.  Hill,  11  Mich.  256. 

"  Pom.  Eq.  Jur.  §  603,  where  It  is  said:  "Actual  knowledge  will 
generally  have  the  same  effect  as  notice  in  controversies  concerning 
priorities;  but  it  IB  especially  important  in  determining  the  exist- 
ence of  good  faith.  It  Is  often  a  most  essential  element  In  making 
out  a  fraudulent  Intent,  where  a  mere  technical  notice  would  be 
Insufficient" 

»»  Ellis  v.  Horrman,  90  N.  Y.  466,  473;  Kennedy  v.  Green,  8  Mylne 
&  K.  WO;  Flagg  r.  Mann,  2  Sumn.  554,  Fed.  Oas.  No.  4,847;  Grim- 


§   50)  ACTUAL    NOTICE.  131 

fact  of  the  existence  of  the  conflicting  claim  or  interest  may 
be  disclosed  by  a  definite  statement  of  the  vendor,  mortga- 
gor, or  grantor  imparting  actual  knowledge,  or  it  may  be  by 
a  statement  which  could  not  communicate  complete  knowl- 
edge. It  is  sufficient  if  it  is  so  definite  as  to  convey  the  im- 
pression that  the  conflicting  claim  or  interest  does  really 
exist.18  Such  knowledge  may  be  imparted  by  statements 
made  by  near  friends  and  relatives  of  either  the  grantor, 
vendor,  or  mortgagor,  or  the  holder  of  the  conflicting  claim 
or  interest.  It  is  presumed  that  the  knowledge  so  imparted 
is  of  sufficient  authenticity,  owing  to  the  position  of  the  in- 
formant, to  impose  upon  the  person  contemplating  the  acqui- 
sition of  the  estate  a  duty  of  pursuing  a  further  inquiry  as  to 
the  truth  of  such  statements.14  If  the  price  paid  by  the  pur- 
chaser is  grossly  inadequate,  it  may  tend  to  show  that  he 
had  notice  of  outstanding  conflicting  claims  or  interests, 
since  such  fact  should  have  put  him  on  inquiry  as  to  the  rea- 
sons for  selling  the  property  at  less  than  its  apparent  value.15 
So,  also,  the  knowledge  of  visible  material  objects  on  the 
premises,  which  might  reasonably  suggest  the  existence  of 
some  easement  or  right  therein,  may  be  sufficient  to  put  a 
purchaser  on  inquiry.16 

stone  v.  Carter,  3  Paige  (N.  T.)  421,  24  Am.  Dec.  230;  Jackson  v. 
Post,  15  Wend.  (N.  Y.)  588;  Reed  v.  Gannon,  50  N.  Y.  345;  Parker 
v.  Conner,  93  N.  Y.  118,  45  Am.  Rep.  178;  Hume  v.  Franzen,  73 
Iowa,  25,  34  N.  W.  490;  Brown  v.  Connell,  85  Ky.  403,  3  S.  W.  794; 
Leas  v.  Garverich,  77  Iowa,  275,  42  N.  W.  194;  Tillman  v.  Thomas, 
87  Ala.  321,  6  South.  151,  13  Am.  St  Rep.  42;  Bausman  v.  Kelley, 
38  Minn.  197,  36  N.  W.  333,  8  Am.  St.  Rep.  661;  Drey  Y.  Doyle,  99 
Mo.  459,  12  S.  W.  287. 

is  Epley  v.  Witherow,  7  Watts  (Pa.)  163;  Blatchley  v.  Osborn, 
83  Conn.  226,  233;  Price  v.  McDonald,  1  Md.  403,  54  Am.  Dec.  657. 

i*  Butcher  v.  Ygcum,  61  Pa.  168,  171,  100  Am.  Dec.  625;  Mulli- 
ken  v.  Graham,  72  Pa.  484;  Spurlock  v.  Sullivan,  36  Tex.  511;  Rip- 
ple v.  Ripple,  1  Rawle  (Pa.)  386;  John  v.  Battle,  58  Tex.  591. 

i»  Peabody  v.  Fen  ton,  3  Barb.  Ch.  (N.  Y.)  451;  Beadles  v.  Miller, 
»  Bush  (Ky.)  405;  Durant  v.  Crowell,  97  N.  C.  367,  2  S.  E.  541;  Hop, 
pin  v.  Doty,  25  Wis.  573;  Eck  v.  Hatcher,  58  Mo.  235. 

i«  Phillipson  Y.  Gibbon,  6  Ch.  App.  428;  Raritan  Water-Power 
Co.  v.  Veghte,  21  N.  J.  Eq.  463,  478;  Hoy  v.  Bramhall,  19  N.  J.  Eq. 
563,  97  Am.  Dec.  687;  Randall  v.  Silverthorn,  4  Pa.  173;  Fresno 
Canal  &  Irrigation  Co.  v.  Rowell,  80  Cal.  114,  22  Pac.  53,  13  Am. 
St.  Rep.  112;  Paul  v.  Railroad  Co.,  51  Ind.  527,  530. 


132  PRIORITIES    AND    NOTICE.  (Ch.  5 

Notice  to  Agent. 

The  knowledge  of  an  agent  will  affect  his  principal  with 
notice,  if  acquired  by  him  during  his  agency,  and  in  the 
course  of  transaction  of  the  same  business  from  which  the 
principal's  rights  and  liabilities  arise.17  It  is  the  duty  of 
an  attorney  at  law,  or  other  agent,  to  communicate  to  his 
client  whatever  information  he  acquires  in  relation  to  the 
subject-matter  involved  in  the  transaction;  and  he  will  be 
conclusively  presumed  to  have  performed  such  duty,  and  no- 
tice to  him  is,  therefore,  actual  notice  to  his  client  or  prin- 
cipal.18 Another  reason  stated  for  the  existence  of  this  rule 
is  that  for  many  purposes  the  agent  and  principal  are  regard- 
ed as  one  person.19  The  reason  has  also  been  declared  to 
be  that,  where  the  principal  has  consummated  a  transaction 
in  whole  or  in  part  through  an  agent,  it  is  contrary  to  equity 
and  good  conscience  that  he  should  be  permitted  to  avail 
himself  of  the  benefits  of  his  agent's  participation  without 
becoming  responsible  for  his  agent's  knowledge  as  well  as 
for  his  agent's  acts.20  But  in  the  case  of  an  attorney,  if  the 
knowledge  acquired  is  of  such  a  nature  that  he  cannot  com- 
municate it  to  his  client  without  a  breach  of  professional  con- 
fidence, the  client  cannot  be  charged  with  notice.21  But  no- 
tice to  the  agent  will  not  bind  the  principal  unless  it  is  ac- 


»7  Snyder  v.  Partridge,  138  111.  173,  29  N.  E.  851;  Littauer  v. 
Houck,  92  Mich.  1G2,  52  N.  W.  404,  31  Am.  St  Rep.  572;  Follette 
T.  Association,  110  N.  0.  377,  14  S.  B.  923,  15  L.  R.  A.  6G8,  28  Am.  St 
Rep.  (in:?;  Burdltt  v.  Porter,  63  Vt  296,  21  Atl.  955,  25  Am.  St  Rep. 
703;  Mullanphy  Sav.  Bank  v.  Schott  135  111.  655,  26  N.  E.  640. 

i«  Wittenbrock  v.  Parker,  102  Cal.  93,  36  Pac.  374,  24  L.  R.  A. 
197,  41  Am.  St  Rep.  172. 

»•  Boursot  T.  Savage,  L.  R  2  Eq.  134. 

•o  2  White  &  T.  Lead.  Gas.  Eq.  (4th  Am.  Ed.)  179,  note;  Irvine 
T.  Grady,  85  Tex.  120,  19  S.  W.  1028;  Hlckman  v.  Green,  123  Mo. 
165,  22  S.  W.  455,  29  L.  R.  A.  39.  In  this  last  case  a  married  woman 
tinder  the  disability  of  coverture  was  held  chargeable  with  her 
agent's  knowledge,  the  court  saying:  "She  cannot  be  permitted  to 
flaunt  her  disability  In  the  face  of  a  court  of  equity;  assert  she  had 
no  notice,  because  she  could  have  no  agent;  and  still  at  the  same 
time  claim  and  hold  under  the  questionable  services  of  the  very 
person  whom  she  employed  in  that  fiduciary  capacity."  See,  also, 
Whltehead  v.  Wells,  20  Ark.  99;  Winchester  v.  Railroad  Co.,  4  Md. 
231. 

*t  Littauer  v.  Houck,  92  Mich.  162,  52  N.  W.  464,  31  Am.  St.  Rep. 
672. 


§    50)  ACTUAL    NOTICE.  133 

quired  by  the  agent  while  acting  in  the  course  of  his  employ- 
ment." In  many  cases  it  has  been  held  that  the  knowledge 
possessed  by  the  agent  must  have  been  acquired  while  en- 
gaged in  the  transaction,  to  be  affected  by  such  knowledge.28 
The  rule  has  been  stated  in  the  supreme  court  of  the  United 
States  as  follows :  "That  notice  to  the  agent  is  notice  to  the 
principal  applies  not  only  to  knowledge  acquired  by  the 
agent  in  the  particular  transaction,  but  to  knowledge  ac- 
quired by  him  in  a  prior  transaction,  and  present  to  his  mind 
at  the  time  he  is  acting  as  such  agent,  provided  it  be  of  such 
a  character  as  he  may  communicate  to  his  principal  without 
breach  of  professional  confidence."  "  It  will  thus  be  no- 
ticed that  there  is  diversity  of  opinion  as  to  when,  and  under 
what  circumstances,  the  knowledge  of  the  agent  must  have 
been  acquired  to  bind  the  principal. 

The  conclusion  to  be  drawn  from  these  opinions  is  that,  if 
the  notice  to  the  agent  was  imparted  to  the  agent  in  the  same 
transaction,  the  principal  will  be  bound  thereby.  If  the 
knowledge  was  acquired  by  the  agent  in  a  prior  transaction 
for  another  principal,  it  must  be  clearly  shown  that  such 
knowledge  was  present  in  his  mind  at  the  time  of  the  trans- 
action sought  to  be  affected.28  And  where  an  agency  is, 
in  its  nature,  continuous,  and  made  up  of  a  long  series  of 
transactions  of  the  same  general  character,  the  knowledge 

22Weisser's  Adm'rs  v.  Denison,  10  N.  Y.  68,  61  Am.  Dec.  731; 
Reynolds  v.  Iiigersoll,  11  Smedes  &  M.  (Miss.)  249,  49  Am.  Dec.  57; 
Russell  v.  Sweezey,  22  Mich.  235;  Smith  v.  Dunton,  42  Iowa,  48; 
Goodwin  v.  Dean,  50  Conn,  517;  Pringle  v.  Dunn,  37  Wls.  449,  19 
Am.  Rep.  772;  Verona  Central  Cheese  Co.  T.  Murtaugh,  50  N.  Y.  314, 
816;  Cole  v.  Getzinger,  96  Wis.  559,  71  N.  W.  75. 

23  Warrlck  v.  Warrlck,  3  Atk.  294;  In  re  Smith's  Appeal,  47  Pa. 
128;  Roberts  v.  Fleming,  53  111.  198;  Keenan  y.  Insurance  Ca,  12 
Iowa,  126;  Bierce  v.  Hotel  Co.,  31  Cal.  160. 

2*  In  re  Distilled  Spirits,  11  Wall.  356,  20  L.  Ed.  167. 

25  Constant  v.  University,  111  N.  Y.  604,  611, 19  N.  E.  631,  2  L.  R,  A. 
734;  Slattery  v.  Schwannecke,  118  N.  Y.  543,  547,  23  N.  E.  922.  Story, 
in  his  work  on  Agency  (page  152,  §  140),  says:  "But,  unless  notice  of 
the  fact  come  to  the  agent  while  he  is  concerned  for  the  principal, 
and  in  the  course  of  the  very  transaction,  or  so  near  before  it  that 
the  agent  must  be  presumed  to  recollect  It,  It  Is  not  notice  thereof 
to  the  principal;  for  otherwise  the  agent  might  have  forgotten  It, 
and  then  the  principal  would  be  affected  by  his  want  of  memory 
at  the  time  of  undertaking  his  agency.  Notice,  therefore,  to  the 
agent,  before  the  agency  is  begun  or  after  it  has  terminated,  will 
not  ordinarily  affect  the  principal." 


134  PRIORITIES    AND    NOTICE.  (Ch.  5 

acquired  by  the  agent  in  one  or  more  of  the  transactions  is 
notice  to  the  agent  and  the  principal,  which  will  affect  the 
latter  in  any  other  transaction  in  which  the  agent,  as  such, 
is  engaged,  and  in  which  the  knowledge  is  material.2*  In 
all  cases,  to  charge  the  principal  with  knowledge  possessed 
by  an  agent,  the  fact  of  which  the  agent  has  notice  must  be 
within  the  scope  of  his  agency.  As  the  question  whether  the 
principal  is  bound  by  contract  entered  into  by  the  agent  de- 
pends on  the  nature  and  extent  of  the  agency,  so  does  the 
effect  upon  the  principal  of  notice  to  the  agent  depend  on  the 
same  conditions.27 

The  general  rule  embraces  in  its  operations  all  persons 
acting  for  others  in  any  representative  capacity.  It  applies 
to  officers  of  corporations,  when  such  officers  are  acting  in 
their  official  capacities.28  But,  when  an  officer  of  a  corpora- 
tion is  dealing  with  it  in  his  individual  capacity  and  interest, 
the  corporation  is  not  chargeable  with  his  uncommunicated 
knowledge  of  facts  derogatory  to  his  title  to  the  property 
which  is  the  subject  of  the  transaction.29  It  also  applies  to 
trustees  acting  on  behalf  of  their  beneficiaries.80  And  where 
an  attorney  is  in  fact  acting  in  behalf  of  both  parties  to  a 
transaction,  his  clients  will  all  be  presumed  to  possess  the 
knowledge  possessed  by  him.81 

a«  Holden  v.  Bank,  72  N.  Y.  286.  See,  also,  Tagg  v.  Bank,  9  Heisk. 
(Tenn.)  479. 

«  Trentor  v.  Pothen,  46  Minn.  298,  49  N.  W.  129,  24  Am.  SL  Rep. 
225.  In  this  case  it  was  Held  that  one  who  employs  an  attorney  for 
the  special  purpose  of  examining  an  abstract  of  title  to  land  is  not 
charged  with  constructive  notice  of  the  attorney's  knowledge,  ac- 
quired in  another  transaction,  of  the  pendency  of  a  suit  which  may 
effect  the  title  to  the  land. 

zs  Smith  v.  Commissioners,  38  Conn.  208;  Tagg  v.  Bank,  9  Heisk. 
<Tenn.)  479;  Holden  v.  Bank,  72  N.  Y.  286;  Fulton  Bank  v.  Canal 
Co.,  4  Paige  (N.  Y.)  127;  New  Hope  &  D.  Bridge  Co.  v.  Bank,  3  N.  Y. 
156;  Bank  of  U.  8.  v.  Davis,  2  Hill  (N.  Y.)  451;  National  Security 
Bank  v.  Cushman,  121  Mass.  490;  Merchants'  Nat.  Bank  of  Kansas 
City  v.  Lovltt,  114  Mo.  519,  21  S.  W.  825,  35  Am.  St  Rep.  770. 

«  Merchants'  Nat  Bank  of  Kansas  City  v.  Levitt,  114  Mo.  519,  21 
8.  W.  82G,  35  Am.  SL  Rep.  770;  Frenkel  v.  Hudson,  82  Ala.  158,  2 
South.  738;  Wlckersham  v.  Zinc  Co.,  18  Kan.  481;  Barnes  v.  Gas- 
light Co.,  27  N.  J.  Eq.  33;  Innerarlty  v.  Bank,  139  Mass.  332,  1  N. 
E.  282;  Atlantic  Cotton  Mills  v.  Orchard  Mills.  147  Mass.  268,  17  N. 
B.  496. 

»o  Willes  v.  Greenhill,  4  De  Gex,  F.  &  J.  147;  Myers  v.  Ross,  3 
Head  (Tenn.)  59. 

•  i  See  note  to  Le  Neve  v.  Le  Neve,  2  White  &  T.  Lead.  Cas.  Eq. 


§    50)  ACTUAL   NOTICE.  135 

The  knowledge  acquired  by  an  agent,  to  bind  his  principal, 
must  be  of  a  fact  material  to  the  transaction  in  which  the 
rights  of  the  principal  therein  are  to  be  affected,  and  it  must 
be  such  knowledge  as  the  agent  is  in  duty  bound  to  disclose 
to  his  principal.82  If  it  can  be  shown  that  the  knowledge 
of  the  agent  was  concealed  by  him  from  his  principal  for  the 
purpose  of  consummating  a  fraud  on  the  principal,  the  prin- 
cipal will  not  be  bound  by  such  knowledge.  Such  fraud 
must  be  contrived  and  carried  out  by  the  agent  for  his  own 
benefit,  in  the  course  of  the  transaction  in  which  he  is  em- 
ployed ;  and  it  must  be  essential  to  the  successful  consumma- 
tion of  such  fraud  that  the  agent  conceal  the  real  facts  from 
his  principal.88 

(4th  Am.  Ed.)  77;  Holden  v.  Bank,  72  N.  Y.  286;  First  Nat.  Bank  of 
New  Milford  v.  Town  of  New  Milford,  36  Conn.  93;  Losey  v.  Simp- 
son, 11  N.  J.  Eq.  246.  The  mere  fact  that  but  one  attorney  is  em- 
ployed does  not  necessarily  make  him  an  attorney  for  both  parties 
to  the  transaction.  It  does  not  follow  that,  if  there  is  not  an  attor- 
ney on  each  side,  the  attorney  who  does  act  is  the  attorney  of  both. 
Perry  v.  Holl,  2  De  Gex,  F.  &  J.  38,  53. 

32  Holland  v.  Hart,  6  Ch.  App.  678,  681,  682;  In  re  Distilled  Spirits, 
11  Wall.  356,  20  L.  Ed.  167;  Roach  v.  Karr,  18  Kan.  529,  26  Am.  Rep. 
778;  Pringle  v.  Dunn,  37  Wis.  449;  May  v.  Borel,  12  Gal.  91;  Fry  v. 
Shehee,  55  Ga.  208. 

as  Cave  v.  Cave,  15  Ch.  Div.  639,  643,  in  which  the  court  sums  up 
the  doctrine  on  this  subject  as  follows:  "There  is  undoubtedly  an 
exception  to  the  construction  or  imputation  of  notice  from  the  agent 
to  the  principal;  that  exception  arising  in  the  case  of  such  conduct 
by  the  agent  as  raises  a  conclusive  presumption  that  he  would  not 
communicate  the  fact  in  controversy.  This  exception  has  been  put 
in  two  ways.  In  the  very  well  known  case  of  Rolland  v.  Hart,  6 
Ch.  App.  678,  Lord  Hatherly  put  it  substantially  in  this  way:  That 
you  must  look  at  the  circumstances  of  the  case,  and  inquire  whether 
the  court  can  see  that  the,  solicitor  intended  a  fraud,  which  would  re- 
quire the  suppression  of  the  knowledge  of  the  incumbrance  from  the 
person  upon  whom  he  was  committing  the  fraud.  In  Thompson  v. 
Cartwright,  33'Beav.  178,  the  late  master  of  rolls  put  it  rather  dif- 
ferently, and  it  would  appear  that,  in  his  view,  you  must  inquire 
whether  there  are  such  circumstances  in  the  case,  independently  of 
the  fact  under  inquiry,  as  to  raise  an  inevitable  conclusion  that  the 
notice  had  not  been  communicated.  In  the  one  view,  notice  is  not 
imputed,  because  the  circumstances  are  such  as  not  to  raise  the  con- 
clusion of  law,  which  does  ordinarily  arise  from  the  mere  existence 
of  notice  to  the  agent;  in  the  other  view, — that  of  Lord  Hatherly,— 
'the  act  done  by  the  agent  is  such  as  cannot  be  said  to  be  done  by 
him  in  the  character  of  agent,  but  is  done  by  him  in  the  character  of 
a  party  to  an  independent  fraud  on  his  principal,  and  that  is  not  to 
be  imputed  to  the  principal  as  an  act  done  by  his  agent.'  "  See,  also, 


136  PRIORITIES    AND    NOTICE.  (Ch.   5 


CONSTRUCTIVE  NOTICE. 

51.  The  following  examples  of  constructive  notice 
affecting  subsequent  purchasers  and  incum- 
brancers  of  real  property  will  be  consider- 
ed: 

(a)  Possession   by   the    adverse    claimant    under 

claim  of  ownership. 

(b)  Notice  by  registration  of  instruments  affect- 

ing the  title. 

(c)  Recitals  in  title  papers  through  which  the  ti- 

tle of  the  grantor  is  traced. 

(d)  Liis  pendens. 

Constructive  notice  has  been  defined  in  another  place  in 
this  chapter  as  such  information  of  a  fact  as  a  person  will 
be  legally  presumed  to  possess  from  the  existence  of  estab- 
lished facts.  The  legal  presumption  may  be  rebuttable,  or 
it  may  be  conclusive.  If  a  person  has  information  of  certain 
extraneous  facts,  "which  do  not  of  themselves  constitute 
actual  notice  of  an  existing  interest,  claim,  or  right  in  or  to 
the  subject-matter,  but  which  are  sufficient  to  put  him  upon 
an  inquiry  concerning  the  existence  of  a  conflicting  inter- 
est, claim,  or  right,  then  he  is  charged  with  constructive 
notice,  because  a  presumption  of  law  arises."  *  It  will  be 
noticed  that  the  facts  need  not  directly  show  the  exist- 
ence of  such  conflicting  interests  or  claims.  If  they  did, 
the  person  receiving  notice  thereof  would  be  charged 
with  actual  notice.  To  illustrate  this  proposition:  If  a 
party  contemplating  the  purchase  of  real  property  knows 
that  the  property  is  in  the  possession  of  a  party  other  than 
the  grantor,  such  knowledge  is  sufficient  to  put  the  expected 
purchaser  upon  an  inquiry  concerning  the  occupant's  inter- 
est. The  legal  presumption  in  such  a  case  would  be  that  the 
purchaser  had  full  notice  of  such  occupant's  interest,  and 

Allen  T.  Railroad  Co.,  150  Mass.  200,  22  N.  E.  917,  5  L.  R.  A.  716,  15 
Am.  St.  Rep.  185;  McCormlck  v.  Wheeler,  36  111.  114,  85  Am.  Dec.  388; 
Bolden  v.  Bank.  72  N.  Y.  286. 
i  51.     i  Pom.  Eq.  Jur.  {  606. 


§   52)  CONSTRUCTIVE   NOTICE.  137 

bought  subject  thereto.  As  soon  as  it  has  been  shown  that 
the  purchaser  had  knowledge  of  the  occupant's  possession, 
he  is  legally  presumed  to  have  had  notice  of  such  occupant's 
adverse  claim.  But  this  legal  presumption  may  be  rebutted 
by  evidence  to  the  effect  that  he  pursued  diligently  the  in- 
quiry pointed  out  to  him  by  the  information  which  he  had 
received  of  such  extraneous  facts,  and  that  he  was  unable 
to  ascertain  the  existence  of  any  conflicting  claim  or  inter- 
est.8 But  other  species  of  constructive  notice  are  conclu- 
sive, and  cannot  be  rebutted.  Notice  from  recitals  contained 
in  a  deed  which  is  a  necessary  link  in  a  party's  chain  of  title, 
and  that  derived  from  registration  and  a  Us  pendens,  are  ab- 
solute in  their  effects,  and  conclusive  on  a  party,  without  any 
regard  to  the  probability,  or  even  the  possibility,  of  his  hav- 
ing gained  a  knowledge  of  the  prior  right. 


SAME— POSSESSION  AS  CONSTBUCTIVE  NOTICE. 

62.  Visible  and  notorious  possession  of  real  prop- 
erty under  an  apparent  claim  of  ownership 
is  notice  to  those  who  subsequently  deal  with 
the  title,  and  to  all  the  world,  of  the  exist- 
ence of  any  right,  claim,  or  interest  which 
the  person  in  possession  is  able  to  establish.1 

«  Williamson  v.  Brown,  15  N.  Y.  362;  Reynolds  v.  Carlisle,  99  Ga. 
730,  27  S.  E.  169. 

§  52.  i  Phelan  v.  Brady,  119  N.  Y.  587,  23  N.  E.  1109,  8  L.  R.  A. 
211;  Gouverneur  v.  Lynch,  2  Paige  (N.  Y.)  300;  Bank  of  Orleans  v. 
Flagg,  3  Barb.  Ch.  (N.  Y.)  318;  Moyer  v.  Hinman,  13  N.  Y.  184; 
Trustees  of  Union  College  v.  Wheeler,  61  N.  Y.  88,  89;  Cavalli  v. 
Allen,  57  N.  Y.  517;  Landers  v.  Brant,  10  How.  348,  13  L.  Ed.  449; 
McKinzie  v.  Perrill,  15  Ohio  St.  168;  Jones  v.  Marks,  47  Cal.  242; 
Cabeen  v.  Breckenridge,  48  111.  91;  TruesdaJe  v.  Ford,  87  111.  210; 
Dunlap  v.  Wilson,  32  111.  517;  Reeves  v.  Ayers,  38  111.  418;  Bogue  v. 
Williams,  48  111.  371;  Warren  v.  Richmond,  53  111.  52;  Thomas  v. 
Burnett,  128  111.  37,  21  N.  E.  352,  4  L.  R.  A.  222;  Lafferty  v.  Railroad 
Co.,  124  Pa.  297,  16  Atl.  869,  8  L.  R.  A.  124,  10  Am.  St.  Rep.  587; 
Miller  v.  Railroad  Co.,  132  U.  S.  662,  10  Sup.  Ct.  206,  33  L.  Ed.  487; 
Noyes  v.  Hall,  97  U.  S.  34,  24  L.  Ed.  909;  Baldwin  v.  Johnson,  1  N. 
J.  Eq.  441;  Diehl  v.  Page,  3  N.  J.  Eq.  143;  Petraln  v.  Kiernan,  23 
Or.  455,  32  Pac.  158;  Woods  v.  Farmere,  7  Watts  (Pa.)  385,  32  Am. 
Dec.  772;  Glidewell  v.  Spaugh,  26  Ind.  319;  Robbins  v.  Moore,  129 
I1L  30,  21  N.  E.  »34;  Wertheimer  v.  Thomas,  168  Pa.  168,  81  Atl. 


138  PRIORITIES    AND    NOTICE.  (Ch.  5 

This  proposition  has  been  embodied  in  our  law  since 
the  time  of  Lord  Thurlow.2  To  constitute  notice,  the  pos- 
session and  occupation  must  be  actual,  open,  and  visible.  It 
must  not  be  equivocal,  occasional,  or  for  a  special  or  tempo- 
rary purpose ;  neither  must  it  be  consistent  with  the  title  of 
the  apparent  owner  by  record.8  In  case  of  such  an  ac- 
tual, open,  and  visible  occupation  and  possession,  it  would 
seem  that  it  is  not  necessary  for  the  subsequent  purchaser 
to  have  had  knowledge  thereof  to  charge  him  with  no- 
tice, for  it  has  frequently  been  held  that  such  a  purchaser 
would  be  charged  although  he  was  a  resident  of  another 
state,  and  unfamiliar  with  the  premises  in  question.4  An 
English  judge  has  stated  the  rule  as  follows :  "I  appre- 
hend that  by  the  law  of  England,  when  a  man  is  of  right 
and  de  facto  in  possession  of  a  corporeal  hereditament, 
he  is  entitled  to  impute  knowledge  of  that  possession  to  all 
who  deal  for  any  interest  in  the  property  conflicting  or  in- 
consistent with  the  title  or  alleged  title  under  which  he  is 
in  possession,  or  which  he  has  a  right  to  connect  with  his 
possession  of  the  property.  It  is  equally  a  part  of  the  law  of 
the  country,  as  I  understand  it,  that  a  man  who  knows,  or 
who  cannot  be  heard  to  deny  that  he  knows,  another  to  be  in 
possession  of  certain  property,  cannot,  for  any  civil  purpose, 
as  against  him  at  least,  be  heard  to  deny  having  thereby 
notice  of  the  title  or  alleged  title  under  which,  or  in  respect 
of  which,  the  former  is,  and  claims  to  be,  in  that  posses- 
sion." B  If  the  purchaser  have  knowledge  of  the  occupancy 

1096,  47  Am.  St  Rep.  882;  Anderson  v.  Brinser,  129  Pa,  376,  11  Atl. 
809,  18  Atl.  520,  6  L.  R.  A.  205;  Henderson  v.  Wanamaker,  79  Fed. 
736,  25  C.  C.  A.  181;  Prouty  v.  Tilden,  164  111.  103,  45  N.  E.  445; 
Lynch  v.  Sanders,  8  App.  Dlv.  613,  40  N.  Y.  Supp.  594;  Can  v.  Bren- 
nan,  166  111.  108,  47  N.  E.  721;  Marden  v.  Dorthy,  160  N.  Y.  39,  52,  54 
N.  E.  726,  46  L.  R.  A.  694. 

•  Taylor  v.  Stibbert,  2  Ves.  Jr.  437. 

•  Brown  v.  Volkenlng,  64  N.  Y.  76,  82,  83;  Townsend  v.  Little.  109 
D.  S.  504,  3  Sup.  Ct.  357,  27  L.  EcL  1012;  Atwood  v.  Bearss,  47  Mien. 
72,  10  N.  W.  112;   Holland  v.  Brown.  140  N.  Y.  344,  348,  35  N.  E.  577. 

«  Emmons  v.  Murray,  16  N.  H.  385;  Farmers'  Loan  &  Trust  Oo.  v. 
Maltby.  8  Paige  (N.  Y.)  361;  Doyle  v.  Stevens.  4  Mich.  87;  Tillotson 
r.  Mitchell,  111  111.  518;  Higgins  v.  White,  118  111.  619.  8  N.  E.  808; 
Ranney  v.  Hardy,  43  Ohio  St.  157,  1  N.  E.  523;  Hodge's  Ex'r  v. 
Amerman,  40  N.  J.  Eq.  99,  104,  2  Atl.  257. 

•  Holmes  v.  Powell,  8  De  Ger,  M.  &  G.  572,  per  Knight  Bruce,  L. 
J.    That  the  purchaser's  ignorance  of  risible,  notorious,  and  actual 


§   52)  CONSTRUCTIVE    NOTICE.  139 

or  possession,  he  is,  in  any  court,  put  upon  an  inquiry  as  to 
the  claim  or  interest  of  the  occupant,  and  will  be  presumed 
to  possess  such  information  as  he  could  have  acquired  had  he 
prosecuted  such  inquiry.'  Possession  out  of  the  vendor, 
and  actually  in  another  person,  only  suggests  an  inquiry 
into  the  claim  of  the  latter.  Ordinarily,  that  inquiry  should 
be  made,  because  it  evinces  bad  faith  or  gross  neglect  not 
to  make  it.  But  notice  will  only  be  imputed  to  a  purchaser 
where  it  is  a  reasonable  and  just  inference  from  the  visible 
facts.  The  purchaser  cannot  willfully  close  his  eyes,  and 
then  allege  good  faith;  nor  can  he  pause  in  the  examina- 
tion where  the  facts  made  known  to  him  suggest  the  pursuit 
of  a  further  inquiry.7 

Sufficiency  of  Possession. 

It  is  sometimes  difficult  to  determine  whether  the  posses- 
sion is  sufficiently  unequivocal  and  distinct  to  give  notice 
to  subsequent  purchasers  or  incumbrancers.  If  the  premises 
are  vacant  of  possession  at  the  time  when  a  party  acquires 
his  interest  therein,  no  notice  will  be  imputed  to  him,  because 
there  are  no  visible  facts  sufficient  to  put  him  on  inquiry.8 
And  if  the  possession  was  prior  to  the  acquisition  of  title  by 
the  subsequent  purchaser,  it  will  not  impose  upon  him  the 


possession  is  immaterial,  see  Scheerer  v.  Cuddy,  85  Cal.  270,  24  Pac. 
713;  Wickes  v.  Lake,  25  Wis.  71;  Dutton  v.  Warschauer,  21  Cal.  609, 
82  Am.  Dec.  765;  Honzik  v.  Delaglise,  65  Wis.  499,  27  N.  W.  171. 

e  Rogers  v.  Jones,  8  N.  H.  264;  Rogers  v.  Hussey,  36  Iowa,  664; 
Hull  v.  Noble,  40  Me.  459,  480;  Van  Keuren  v.  Railroad,  38  N.  J. 
Law,  165,  167;  Illinois  Cent.  R.  Co.  v.  McCullough,  59  111.  166;  Tun- 
nison  v.  Chamblin,  88  111.  378,  390;  Jamison  v.  Diniock,  95  Pa.  52; 
Hottenstein  v.  Lerch,  104  Pa.  454;  Coe  v.  Manseau,  62  Wis.  81,  22 
N.  W.  155;  Honzik  v.  Delaglise,  65  Wis.  499,  27  N.  W.  171. 

f  Cook  v.  Travis,  20  N.  Y.  400,  403,  citing  Jones  v.  Smith,  1  Hare, 
43;  Hewes  v.  "Wiswall,  8  Greenl.  (Me.)  94;  Flagg  v.  Mann,  2  Sumn. 
555,  Fed.  Cas.  No.  4.847;  McMechan  v.  Griffing,  3  Pick.  (Mass.)  156, 
15  Am.  Dec.  198;  Scott  v.  Gallagher,  14  Serg.  &  R.  (Pa.)  333.  The 
only  effect  which  the  occupancy  of  the  premises  can  have  is  to  ex- 
cite inquiry  with  reference  to  the  title,  and  any  failure  on  the  part 
of  such  purchaser  to  make  such  inquiry  is  regarded  as  an  intention- 
al avoidance  of  the  truth  which  would  have  been  disclosed.  Wade, 
Notice,  §  279. 

s  Miles  v.  Langley,  1  Russ.  &  M.  39;  Jones  v.  Smith,  1  Hare,  46, 
62;  Meehan  v.  Williams,  48  Pa.  238;  Hewea  r.  Wiswall,  8  Greenl. 
(Me.)  94. 


140  PRIORITIES    AND    NOTICE.  (Ch.   5 

duty  of  making  inquiry  as  to  such  prior  occupancy.*  Nor 
will  the  presence  of  an  alleged  occupant  on  the  land  at  stated 
intervals,  when  such  presence  is  transitory,  and  not  connect- 
ed with  any  use  of  the  land,  be  such  possession  as  will  charge 
the  subsequent  purchasers  or  incumbrancers  with  notice  of 
his  interests  therein.10  Nor  will  the  principles  of  construc- 
tive notice  apply  to  unimproved  lands,11  nor  should  they 
apply  to  uninhabited  and  unfinished  dwelling  houses.12  And 
the  using  of  lands  for  pasturage  or  for  cutting  timber  is  not 
such  an  occupancy  as  will  charge  a  purchaser  or  incum- 
brancer  with  notice.18  While  actual  residence  on  the  land 
may  not  be  necessary  to  show  possession,  yet,  if  there  be 
no  actual  pedis  possessio,  dominion  must  be  manifested  by 
such  notorious  acts  of  ownership  as  will  naturally  be  ob- 
served by  others,  and  the  acts  must  be  of  a  character  so  cer- 
tain and  definite  as  not  to  be  liable  to  be  misunderstood  or 
misconstrued.14 

Possession  by  Tenant. 

Possession  by  a  tenant  is  constructive  notice  to  a  pur- 
chaser or  incumbrancer  of  the  terms  of  the  lease,  and  also  of 
all  rights  and  interests  which  the  tenant  may  have  acquired 
by  other  agreements.18  The  English  rule  is  that  the  posses- 
sion of  a  tenant  under  a  lease  is  only  notice  of  his  tenancy, 
and  not  of  the  nature  or  extent  of  the  landlord's  titl^e.16 

•  Ehle  v.  Brown,  31  WIs.  405;  Campbell  v.  Brackenridge,  8  Blackf. 
and.)  471. 

10  Kendall  v.  Lawrence,  22  Pick.  (Mass.)  540;  Noyes  v.  Hall,  97 
U.  S.  34,  24  L.  Ed.  909;  Cabeen  v.  Breckenridge,  48  I1L  91;  Tankard 
Y.  Tankard,  79  N.  C.  64. 

»i  Patten  v.  Moore,  32  N.  H.  382. 

"  Brown  v.  Volkenlng,  64  N.  Y.  76,  83. 

»•  Coleman  v.  Backlew,  27  N.  J.  Law,  357;  McMecban  v.  Grlffing, 
8  Pick.  (Mass.)  149,  15  Am.  Dec.  198;  Holmes  v.  Stout,  10  N.  J.  Kq. 
419.  See,  also,  Fassett  v.  Smith,  23  N.  Y.  252. 

i«  Hodge's  Ex'r  v.  Amerman,  40  N.  J.  Eq.  99,  2  Atl.  257. 

*»  Notice  of  terms  of  lease.  James  v.  Utchfleld,  L.  R.  9  Eq.  51; 
Hlern  v.  Mill,  13  Ves.  114;  Knight  r.  Bowyer,  23  Beav.  609;  Tay- 
lor v.  Stlbbert,  2  Ves.  Jr.  437;  Kerr  v.  Day,  14  Pa.  112;  Cunningham 
T.  Pattee,  99  Mass.  248;  Phelan  v.  Brady,  119  N.  Y.  587,  23  N.  E. 
1109,  8  L.  R.  A.  211;  Morrison  v.  Herrick,  130  111.  631,  22  N.  E.  537. 
Notice  as  to  collateral  interests  of  tenant.  Daniels  v.  Davlson,  16 
VCB.  249;  Douglas  v.  Whitrong,  cited  In  Id.  254;  Wllbraham  v.  Live- 
•ey.  18  Beav.  206;  Pom.  Eq.  Jur.  §  625. 

i«  Jones  v.  Smith,  1  Hare,  43.  63;  Barnhart  r.  Greenshields,  28 
Eng.  Law  &  Eq.  77;  Id.,  8  Moore,  P.  O.  18,  36. 


§   52)  CONSTRUCTIVE   NOTICE.  141 

There  .is  some  conflict  among  the  decisions  in  the  American 
courts.  The  preponderance  of  authority,  however,  seems  to 
be  that  possession  of  a  lessee  is  notice  of  the  lessor's  title, 
since  by  such  possession  the  purchaser  is  put  upon  an  in- 
quiry respecting  all  the  rights  and  interests  which  the  lessee 
may  have  in  the  premises ;  and,  if  such  inquiry  be  pursued, 
the  purchaser  might  ascertain  who  the  lessor  is  and  what  his 
rights  are.17 

Grantor  Remaining  m  Possession. 

There  is  also  division  of  authority  upon  the  question  as  to 
whether  the  possession  of  a  grantor  remaining  in  possession 
after  the  execution  and  delivery  of  a  deed  absolute  on  its 
face,  and  which  has  been  duly  recorded,  under  some  agree- 
ment or  arrangement  not  included  in  the  deed,  is  constructive 
notice  to  the  purchaser,  from  the  grantee,  of  any  right  or 
interest  which  the  grantor  may  have,  antagonistic  to  the  deed. 
Many  cases  hold  that  the  purchaser  may  rely  on  the  state- 
ments contained  in  the  recorded  deed,  and  that,  having  ex- 
pressly declared  by  his  deed  that  he  makes  no  reservation,  he 
cannot  afterwards  set  up  any  secret  arrangement  by  which 
his  grant  would  be  impaired.18  Other  cases  hold  that  the 

IT  Metropolitan  Bank  v.  Godfrey,  23  111.  579,  607;  Smith  v.  Jack- 
son's Heirs,  76  111.  254;  Thomas  v.  Burnett,  128  111.  37,  21  N.  E.  352; 
Crawford  v.  Railroad  Co.,  112  111.  314;  Haworth  v.  Taylor,  108  111. 
275;  Cunningham  v.  Pattee,  99  Mass.  248;  Dickey  v.  Lyon,  19  Iowa, 
545;  Bowman  v.  Anderson,  82  Iowa,  210,  47  N.  W.  1087,  31  Am.  St. 
Rep.  473;  Nelson  v.  Wade,  21  Iowa,  49;  Bank  of  Orleans  v.  Flagg,  3 
Barb.  Ch.  (N.  Y.)  316;  Kerr  v.  Day,  14  Pa.  112;  Wright  v.  Wood,  23 
Pa.  120,  130;  Hottenstein  v.  Lerch,  104  Pa.  454;  Levy  v.  Holberg, 
67  Miss.  526,  7  South.  431;  Edwards  v.  Thompson,  71  N.  C.  177,  181; 
O'Rourke  v.  O'Connor,  39  Cal.  442,  446.  The  following  cases  are 
opposed  to  this  doctrine:  Flagg  v.  Mann,  2  Sumn.  486,  557,  Fed. 
Oas.  No.  4.847;  Beatie  v.  Butler,  21  Mo.  313,  64  Am.  Dec.  234;  Jaques 
v.  Weeks,  7  Watts  (Pa.)  261,  272;  Robertson  v.  Wheeler,  162  111.  566, 
44  N.  E.  870. 

i«  Van  Keuren  v.  Railroad  Co.,  88  N.  J.  Law,  165,  167,  where  It  Is 
expressly  held  that  the  doctrine  of  constructive  notice  by  possession 
does  not  apply  to  a  grantor  remaining  in  possession  after  his  con- 
veyance, and  that  the  deed  absolute  In  form  is  conclusive,  and  the 
purchaser  may  safely  rely  on  It.  See,  also,  Dodge  v.  Davis,  85  Iowa, 
77,  52  N.  W.  2;  Exon  v.  Dancke,  24  Or.  110,  32  Pac.  1045;  Rankln  v. 
Coar,  46  N.  J.  Eq.  566,  22  Atl.  177;  Hafter  v.  Strange,  65  Miss.  323,  3 
South.  190;  Eylar  v.  Eylar,  60  Tex.  315;  Lamoreux  v.  Huntley,  68 
Wis.  34,  31  N.  W.  331;  Mateskey  v.  Feldman,  75  Wls.  103,  43  N.  W. 
733;  Rowe  T.  Ream,  105  Pa,  543;  Staton  v.  Davenport,  95  N.  C.  11. 


142  .    PRIORITIES    AND    NOTICE.  (Ch.  5 

grantor's  possession  after  the  delivery  of  his  deed  is  a  fact 
inconsistent  with  its  legal  effect,  and  is  suggestive  that  he  still 
retains  some  interest  in  the  premises,  and  that,  therefore,  his 
possession  is  as  effectual  to  charge  a  subsequent  purchaser 
from  the  grantee  with  constructive  notice  as  if  the  possession 
had  been  that  of  a  stranger  to  the  record  title.1* 

Effect  of  Record  Title  on  Possession  as  Notice. 

Under  some  circumstances  a  person  being  in  possession 
of  land  under  his  title  may,  nevertheless,  be  prevented  from 
relying  on  such  possession  as  notice  to  subsequent  purchas- 
ers,— as  where,  in  addition  to  the  unrecorded  or  parol  title 
under  which  the  person  in  possession  assumes  to  hold  the 
land,  he  has  a  title  which  is  on  record,  under  which  he  would 
also  be  entitled  to  possession.  In  such  case  he  will  be 
deemed  in  possession  under  his  recorded  title,  and  the  pur- 
chaser will  not  be  charged  with  notice  of  the  undisclosed  title 
or  interest  which  the  possessor  may  have.  Thus,  where  a 
mortgagee  is  in  possession  under  a  recorded  mortgage,  a 
purchaser  from  the  mortgagor  will  not  be  presumed  to  know 
of  an  unrecorded  conveyance  of  the  equity  of  redemption 
from  the  mortgagor  to  the  mortgagee,  unless  by  the  terms 
of  the  recorded  instrument  the  mortgagor  was  entitled  to 
possession  at  the  time  of  the  purchase.20  When  a  party 
records  an  instrument,  the  terms  of  which  are  consistent 
with  his  possession  of  the  land,  subsequent  purchasers  have 
a  right  to  rely  on  such  record.  The  fact  that  he  has  placed 
the  evidence  of  his  right  to  occupy  on  record,  where  it  is 
accessible  to  the  whole  world,  arrests  inquiry  at  that  point, 
and  plainly  informs  the  purchaser  that  he  may  rest  securely 
on  the  information  already  obtained.21 

tt  Illinois  Cent  R.  Co.  v.  McCullough,  59  111.  166;  Ford  v.  Marcall, 
107  111.  136;  Metropolitan  Bank  v.  Godfrey,  23  111.  579,  607;  Pell  v. 
McElroy,  36  Gal.  208;  Groff  v.  Bank,  50  Minn.  234,  52  N.  W.  661; 
Turman  v.  Bell,  54  Ark.  273.  15  S.  W.  886,  26  Am.  St.  Rep.  35;  Ste- 
vens v.  Hulln,  53  Mich.  93,  18  N.  W.  569;  McKecknle  v.  Hosklns,  23 
Me.  230;  Hopkins  v.  Garrard.  7  B.  Mon.  (Ky.)  312. 

10  piumer  v.  Robertson,  6  Serg.  &  R.  (Pa.)  179;  Palmer  v.  Bates, 
22  Minn.  532;  Great  Falls  Co.  v.  Worster,  15  N.  H.  412;  Bell  v.  Twi- 
light, 22  N.  H.  500;  Crassen  v.  Swoveland,  22  Ind.  427;  Newhall  y. 
Pierce,  5  Pick.  (Mass.)  450. 

«  Woods  y.  Farmere,  7  Watts  (Pa.)  385. 


§   52)  CONSTRUCTIVE    NOTICE.  143 

Presumption  of  Notice  by  Possession  is  Rebuttable. 

The  question  has  frequently  arisen  whether  the  presump- 
tion of  notice  arising  from  possession  of  land  by  a  stranger 
to  the  title  is  conclusive  upon  a  subsequent  purchaser  or  in- 
cumbrancer.  The  difficulties  involved  in  a  correct  determi- 
nation of  this  question  arise  from  the  fact  that  the  courts,  in 
discussing  the  effect  of  possession  as  constructive  notice, 
employ  language  which  makes  it  more  or  less  doubtful  as 
to  whether  it  is  intended  that  the  presumption  of  notice  is 
conclusive  or  may  be  rebutted.  In  a  great  majority  of  the 
cases  involving  a  consideration  of  this  question  it  is  evident 
that  the  courts  were  not  required  to  pass  directly  upon  the 
nature  of  the  presumption.  It  may  be  stated  generally  that, 
if  a  purchaser  or  incumbrancer,  knowing  the  fact  of  posses- 
sion by  a  stranger,  and  being,  therefore,  put  on  inquiry,  has 
either  neglected  to  make  such  inquiry,  or  to  prosecute  it  with 
due  diligence,  he  is  conclusively  presumed  to  have  had  notice 
of  the  conflicting  rights  and  interests  of  the  person  in  posses- 
sion.22 And  again,  if  a  person  is  in  rightful  possession  un- 
der an  unrecorded  deed,  and  such  possession  is  visible,  no- 
torious, and  exclusive,  a  subsequent  purchaser  or  incum- 
brancer, even  though  his  deed  or  mortgage  is  put  on  record, 
becomes  charged  with  absolute  notice.28  The  presumption 
of  notice  in  such  cases  cannot  be  rebutted  or  overcome  by 
any  evidence.  But  it  seems  authoritatively  determined, 
where  the  courts  have  directly  passed  upon  the  question, 
that  a  presumption  of  notice  under  ordinary  circumstances 
may  be  rebutted  and  overcome  by  evidence  that  the  subse- 
quent purchaser  or  incumbrancer  has  made  diligent  inquiry 
concerning  the  existence  of  an  adverse  claim  or  interest  in 
the  party  in  possession,  and  has  failed  to  discover  the  truth 
in  respect  thereto.2* 

«  Grimstone  v.  Carter,  3  Paige  (N.  T.)  421,  24  Am.  Dec.  230;  Brice 
v.  Brice,  5  Barb.  (N.  Y.)  533;  Tuttle  v.  Jackson,  6  Wend.  (N.  Y.)  213, 
21  Am.  Dec.  306;  Kent  v.  Plummer,  7  Greenl.  (Me.)  464;  Jaques  v. 
Weeks,  7  Watts  (Pa.)  272;  Hanly  v.  Morse,  32  Me.  287;  Burt  v.  Cass- 
ety,  12  Ala.  739;  Hardy  v.  Summers,  10  Gill  &  J.  (Md.)  316,  32  Am. 
Dec.  167. 

zs  Pom.  Eq.  Jur.  §  623;  Noyes  T.  Hall,  97  U.  S.  34,  38,  24  L.  Ed. 
909;  Cabeen  v.  Breckenridge,  48  111.  91;  Truesdale  v.  Ford,  37  111. 
210;  Emmons  v.  Murray,  16  N.  H.  385:  Strickland  v.  Kirk,  51  Miss. 
795,  797;  Moss  v.  Atkinson,  44  Cal.  3,  17. 

*«  Williamson  T.  Brown,  15  N.  Y.  354,  361,  362,  where  it  Is  said 


144  PRIORITIES    AND    NOTICE.  (Ch.  5 


SAME—  CONSTRUCTIVE  NOTICE  BY  REGISTRATION. 

63.  By  virtue  of  statutes  in  all  the  American  states, 
the  record  or  registration  in  the  proper  place 
of  a  properly  executed  instrument  affecting 
the  title  to  real  estate  operates  as  construct- 
ive notice  of  its  contents,  and  of  the  rights 
and  estates  created  by  it,  to  subsequent  pur- 
chasers or  incumbrancers  under  the  same 
grantor. 

The  statutes  of  the  several  states  have  all  provided  for  the 
registration  of  instruments  affecting  the  title  to  real  property. 
These  statutes  vary  in  detail,  but  are  the  same  in  their  essen- 
tial characteristics.  The  provision  generally  made  is  that 
every  deed,  conveyance,  or  other  instrument  affecting  the 
title  to  real  property,  unless  recorded,  is  void  as  against  sub- 
sequent purchasers  or  incumbrancers  in  good  faith,  for  a 
valuable  consideration,  whose  muniments  of  title  are  first 
recorded.  These  statutes  are  all  intended  to  establish  a 
permanent  method  by  which  the  exact  state  of  the  title 
to  real  estate  may  easily  be  discovered,  and  thus  to  protect 
subsequent  bona  fide  purchasers.1  One  of  the  grounds  on 
which  these  statutes  are  based  is  that  a  grantee  who  fails 
to  record  his  muniment  of  title  places  it  in  the  power  of  his 
grantor  to  commit  a  fraud  on  others,  and  the  law  considers 
him  as  assisting  the  grantor  to  do  this,  and  holds  him  respon- 
sible accordingly.* 

that  possession  puts  the  purchaser  on  Inquiry,  and  makes  It  his  duty 
to  pursue  his  Inquiry  with  diligence,  but  Is  not  absolutely  conclusive 
upon  him.  Rogers  v.  Jones,  8  N.  H.  264,  where  Judge  Parker  says: 
To  say  that  he  [the  purchaser]  was  put  on  Inquiry,  and  that  having 
made  all  due  Investigation,  without  obtaining  any  knowledge  of  title, 
he  was  still  chargeable  with  notice  of  a  deed.  If  one  did  really  exist, 
would  be  absurd."  See,  also,  Thompson  v.  Ploche,  44  CaL  508,  516; 
Flngg  v.  Mann,  2  Sumn.  480.  554,  Fed.  Gas.  No.  4,847;  Kerr  T.  Day, 
14  Pa.  112;  Scheerer  v.  Cuddy,  85  Cal.  271,  24  Pac.  718. 

I  53.  i  Wade,  Notice,  f  96;  Pom.  Eq.  Jur.  §  649;  Bird  r.  Dennl- 
•on.  7  Oal.  297;  Splelmann  v.  Kliest,  36  N.  J.  Eq.  202. 

»  Bird  v.  Dennlson,  7  Cal.  297. 


§   53)  CONSTRUCTIVE    NOTICE.  145 

Recording  acts  are  designed  to  furnish  a  complete  public 
record  of  all  rights,  interests,  claims,  incumbrances,  and 
charges,  both  legal  and  equitable,  on  each  parcel  of  land  with- 
in the  territorial  limits  which  the  record  is  intended  to  cover. 
It  has  been  generally  held,  therefore,  that,  independent  of  the 
express  provisions  of  such  acts,  an  instrument  creating  or 
passing  an  equitable  interest  or  estate  may  be  recorded ; 
and,  if  executed  with  all  the  formalities  prescribed  by  law, 
the  record  will  be  constructive  notice  to  subsequent  purchas- 
ers and  incumbrancers  to  the  same  extent  as  the  record  of 
a  conveyance  of  the  legal  title.8  In  a  New  York  case  it  has 
been  held  that  the  registry  of  a  conveyance  of  an  equitable 
title  is  notice  to  a  subsequent  purchaser  of  the  same  interest 
or  title  from  the  same  grantor,  but  is  not  notice  to  a  pur- 
chaser of  the  legal  title  from  the  person  who  appears  by  the 
record  to  be  the  real  owner.*  And  where  a  right  of  way 
was,  by  agreement,  reserved  out  of  land  conveyed  by  a  deed 
in  which  no  mention  of  the  reservation  was  made,  it  was  held 
that  an  innocent  purchaser,  for  a  valuable  consideration, 
from  the  grantee,  was  not  charged  with  notice  of  such  reser- 
vation, because  it  had  not  been  reduced  to  writing,  and  filed 
for  record,  as  was  required  of  instruments  affecting  the  title 
to  the  land  itself.6  But  the  voluntary  recording  of  an  in- 
strument not  authorized  by  statute  would  not  charge  subse- 
quent purchasers  or  incumbrancers  with  notice  of  its  con- 
tents, or  with  any  rights  arising  thereunder, — as  in  the  case 
of  a  transfer  of  personal  property  in  a  deed  also  conveying 
real  property ;  although  the  recording  of  the  deed  is  author- 
ized, it  is  not  constructive  notice  of  the  transfer  of  the  per- 
sonal property.8 

Requisites  of  Record. 

Since  constructive  notice  by  record  is  purely  a  statutory 
creation,  there  must  be  a  compliance  with  all  the  statutory 

«  Digman  v.  McCollum,  47  Mo.  372;  Wilder  v.  Brooks,  10  Minn. 
50  (Gil.  32),  88  Am.  Dec.  49;  Dickinson  v.  Glenney,  27  Conn.  104; 
Russell's  Appeal,  15  Pa.  319;  Doyle  v.  Teas,  5  111.  202;  Tarbell  v. 
West,  86  N.  Y.  280;  Stoddard  v.  Whiting,  46  N.  Y.  627;  Hunt  v. 
Johnson,  19  N.  Y.  281;  Parkist  v.  Alexander,  1  Johns.  Ch.  (N.  Y.) 
394. 

*  Tarbell  v.  West,  86  N.  Y.  280,  287. 

6  Bush  Y.  Golden,  17  Conn.  594. 

«  Pitcher  v.  Barrows,  17  Pick.  (Mass.)  361,  38  Am.  Dec.  306;  Scott 
v.  Lumber  Co.,  67  Cal.  71,  7  Pac.  131. 
EATON.EQ.— 10 


146  PRIORITIES    AND    NOTICE.  (Ch.  5 

requirements.*  If  an  instrument  is  defectively  executed, 
or  is  not  properly  acknowledged,  or  any  other  formality 
necessary  to  entitle  it  to  be  recorded  is  omitted,  the  record 
thereof  is  but  a  voluntary  act,  and  will  not  charge  subsequent 
purchasers  or  incumbrancers  with  notice.8  If  a  deed  has 
been  recorded  before  delivery,  the  record  will  only  be  notice 
to  those  who  purchase  subsequent  to  the  delivery;  and,  if 
a  recorded  deed  is  never  delivered,  it  is  no  notice  to  subse- 
quent purchasers.9  The  record  must  be  made  in  the  proper 
book,  and  in  the  manner  and  form  prescribed  by  statute.10 

i  Pom.  Eq.  Jur.  §  650. 

•  Pringle  v.  Dunn,  37  Wis.  449,  460,  461;  Shepherd  v.  Burkhalter. 
13  Ga.  443,  58  Am.  Dec.  523.    Proper  attestation  by  witnesses  neces- 
sary. Carter  v.  Champion,  8  Conn.  549,  21  Am.  Dec.  695;   White  v. 
Denman,  1  Ohio  St.  110;    improper  acknowledgment,  Jacoway  v. 
Gault,  20  Ark.  190,  73  Am.  Dec.  494;  Blood  v.  Blood,  23  Pick.  (Mass.) 
80;    Reynolds  v.  Kingsbury,  15  Iowa,  238;    Emeric  v.  Alvarado,  90 
Cal.  444,  27  Pac.  356;  Hayden  y.  Moffatt,  74  Tex.  647,  12  S.  W.  820, 

15  Am.  St.  Rep.  866;  Wells  v.  Polk,  36  Tex.  120;  De  Witt  v.  Moulton, 
IT  Me.  418;   Brown  y.  Lunt,  37  Me.  423;   Oockey  y.  Mime's  Lessee, 

16  Md.  200;    Stevens  v.  Morse,  47  N.  H.  532.    But  defectively  ac- 
knowledged instruments  may  be  cured  by  legislation.    Watson  y. 
Mercer,  8  Pet  88,  8  L.  Ed.  876;   Tate  v.  Stooltzfoos,  16  Serg.  &  R. 
(Pa.)  35,  16  Am.  Dec.  546;  Wallaca  v.  Moody,  26  Cal.  387;  Logan  v. 
Williams,  76  111.  175;  Gatewood  v.  Hart,  58  Mo.  261.    In  the  case  of 
Stevens  v.  Hampton,  46  Mo.  404,  it  was  held  that,  where  the  In- 
strument was  fair  on  its  face,  the  record  will  impart  notice  not- 
withstanding hidden  defects  in  the  execution  or  acknowledgment. 

•  Parker  v.  Hill,  8  Mete.  (Mass.)  447;  Mutual  Ben.  Life  Ins.  Co.  v. 
Rowand,  26  N.  J.  Eq.  389;  Jones  y.  Roberts,  65  Me.  273. 

10  Where  a  statute  requires  a  mortgage  to  be  recorded  in  the 
"book  of  mortgages,"  the  record  of  an  absolute  deed  intended  as  a 
mortgage  is  not  constructive  notice  if  recorded  in  the  "book  of 
deeds."  McLanahan  v.  Reeside,  9  Watts,  508;  Dey  y.  Dunham,  2 
Johns.  Ch.  (N.  Y.)  182;  Fisher  v.  Tunnard,  25  La.  Ann  179.  To 
same  effect,  Gulley  v.  Macy,  84  N.  C.  434;  Ives  v.  Stone,  51  Conn. 
446  (where  there  is  no  such  express  statutory  requirement).  But,  in 
the  absence  of  express  statute,  the  record  of  a  conveyance,  absolute 
in  form,  being  notice  of  a  greater  interest  than  the  mortgagee  really 
has,  must  be  held  adequate  to  protect  his  rights,  and  be  treated  as 
sufficient  notice  of  his  actual  Interest  whatever  that  may  prove  to 
be.  Marston  y.  Williams,  45  Minn.  116,  47  N.  W.  644,  22  Am.  St  Rep. 
719;  Kern  per  y.  Campbell,  44  Ohio  St  210,  6  N.  B.  566;  Bank  of  Mo- 
bile v.  Institution,  62  Miss.  250;  Knowlton  v.  Walker,  18  Wls.  264. 
The  record  of  a  mortgage  in  a  "book  of  deeds"  or  of  a  deed  in  a 
"book  of  mortgages"  is  not  constructive  notice.  In  re  Leech's  Es- 
tate, 44  Pa.  140;  Calder  y.  Ohapman,  52  Pa.  359,  91  Am.  Dec.  163. 
In  Mutual  Life  Ins.  Co.  y.  Dake,  87  N.  Y.  257.  263,  It  was  said: 


§   53)  CONSTRUCTIVE   NOTICE.  147 

It  must  also  be  made  in  the  county  in  which  the  land  is  situ- 
ated.11 And  the  record  of  a  deed  only  imparts  notice  of 
such  facts  as  appear  on  the  face  of  the  instrument.  It  is 
not  notice  of  fraud,  for  instance,  perpetrated  in  its  execu- 
tion.11 If  omissions  or  alterations  are  made  in  the  registra- 
tion of  an  instrument,  notice  can  only  be  afforded  thereby 
of  what  is  contained  in  the  record  itself.  A  bona  fide  pur- 
chaser is  entitled  to  rely  on  the  record  as  he  finds  it,  and  is 
not  bound  to  take  notice  of  errors  in  recording,  of  which  he 
has  never  been  actually  informed.18  The  record  and  the 
instrument  itself  must  accurately  and  definitely  describe  the 
premises  affected,  and,  if  the  property  in  controversy  is  not 
so  described  as  to  identify  it  with  reasonable  certainty,  the 
record  cannot  be  constructive  notice  to  subsequent  bona 
fide  purchasers.14 

It  has  been  held  that  the  indexing  of  conveyances  is  no 
part  of  the  record  thereof,  and  that  the  omission  of  the 
recording  officer  to  properly  index  does  not  deprive  grantees 
or  mortgagees  of  the  benefits  of  recording  acts.15  This  doc- 
trine has  been  frequently  controverted  by  cases  holding  that, 
in  the  absence  of  a  proper  index,  subsequent  purchasers  will 
not  be  charged  with  notice.1* 

"Whatever  forms  part  of  a  perfect  record,  as  prescribed  In  the  act 
Is  essential;  that  Is,  the  conveyance  must  be  recorded  In  the  proper 
book,  In  the  proper  order,  and  with  substantial  accuracy.  If  the 
record  be  defective  In  anything  essential,  It  will  not  serve  the  pur- 
pose of  giving  constructive  notice  to  subsequent  bona  fide  grantees 
or  Incumbrancers." 

11  King  v.  Portls,  77  N.  O.  25;  Cohen  v.  Barton,  73  Md.  408,  21 
Atl.  63;  Adams  v.  Hayden,  60  Tex.  223;  Astor  v.  Wells,  4  Wheat. 
466,  4  L.  Ed.  616. 

12  Hoffman  v.  Strokecker,  7  Watts  (Pa.)  86. 

i«  Terrell  v.  Andrew  Co.,  44  Mo.  309;  Brydon  y.  Campbell,  40  Md. 
331;  Calder  v.  Chapman,  52  Pa.  359;  Jennings  y.  Wood,  20  Ohio, 
261;  Peek  v.  Mallams,  10  N.  Y.  509;  Beekman  v.  Frost,  18  Johns. 
(N.  Y.)  544,  9  Am.  Dec.  246;  Young  v.  Wilson,  27  N.  Y.  351. 

i«  Bailey  v.  Galpin,  40  Minn.  319,  41  N.  W.  1054;  Miller  y.  Brad- 
ford, 12  Iowa,  14;  Jennings  v.  Wood,  20  Ohio,  261. 

IB  Mutual  Life  Ins.  Co.  of  New  York  y.  Dake,  87  N.  Y.  257;  Curtis 
y.  Lyman,  24  Vt.  338,  58  Am.  Dec.  174;  Bishop  y.  Scheider,  46  Mo. 
472,  2  Am.  Rep.  533, 

i«  Speer  v.  Evans,  47  Pa.  141;  Barney  v.  McOarty,  15  Iowa,  510; 
Whalley  v.  Snail,  25  Iowa,  184;  JEtna  Life  Ins.  Co.  y.  Hesser,  77 
Iowa,  381,  42  N.  W.  325,  4  L.  R.  A.  122,  14  Am.  St  Rep.  297. 


148  PRIORITIES    AND    NOTICE.  (Ch.   5 

Record  is  Notice  to  Whom. 

The  record  of  a  conveyance  after  a  compliance  with  all 
statutory  requirements  does  not  operate  as  constructive  no- 
tice to  all  the  world.  The  statutes  prescribing  the  effect 
of  the  registration  of  instruments  vary  in  their  terms.  They, 
in  substance,  all  declare  that  an  unrecorded  conveyance  is 
invalid  as  against  subsequent  purchasers  or  incumbrancers 
for  a  valuable  consideration.  It  would  necessarily  follow 
that  the  registration  of  a  conveyance  is  constructive  notice 
only  to  subsequent  bona  fide  purchasers  and  incumbran- 
cers.17 These  statutes  have  no  reference  to  prior  incum- 
brances  already  recorded.  The  effect  of  recording  a  con- 
veyance is  not  retrospective,  nor  was  it  designed  to  change 
rights  already  vested  and  secured  by  a  recorded  deed  or 
mortgage.  It  simply  protects  a  purchaser  who  takes  the 
precaution  to  search  the  records  and  record  his  own  con- 
veyance against  unrecorded  conveyances  of  which  he  had 
no  notice.18  The  registration  of  a  deed  from  one  having 
no  title  does  not  charge  the  lawful  owner  with  notice  of  its 
existence.19  It  is  settled  doctrine  that  a  record  is  only  a 
constructive  notice  to  subsequent  purchasers  deriving  title 
from  the  same  grantor.20 


SAME— RECITALS  IN  TITLE  PAPERS. 

64.  A  purchaser  of  real  property  is  chargeable  -with 
notice  of  every  matter  affecting  the  estate 
•which  appears  on  the  face  of  any  instrument 
in  his  chain  of  title,  and  of  every  matter  that 


»T  Hunter  v.  Watson,  12  Cal.  363,  3  Am.  Dec.  543;  Dennis  v.  Bur- 
ritt,  6  Cal.  670;  Coleman  v.  Reynolds,  181  Pa.  317,  37  Atl.  543. 

»«Stuyvesant  v.  Hone,  1  Sandf.  Ch.  (N.  Y.)  419;  Stuyvesant  v. 
Hall,  2  Barb.  Ch.  (N.  Y.)  151;  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y. 
271,  59  Am.  Dec.  478;  Hill's  Adm'r  v.  McCarter,  27  N.  J.  Eq.  41; 
Hoy  v.  Bra m hall,  19  N.  J.  Eq.  563,  27  Am.  Dec.  687;  Leiby  v.  Wolfe, 
10  Ohio  St.  83;  James  v.  Brown,  11  Mich.  25;  Doolittle  v.  Cook,  75 
111.  354;  Iglehart  v.  Crane,  42  III  261;  Ackerman  v.  Hunsicker,  85 
N.  Y.  43,  49,  39  Am.  Rep.  621. 

»•  Bates  v.  Norcross,  14  Pick.  (Mass.)  224;  Roberts  v.  Richards, 
84  Me.  1.  24  Atl.  425. 

so  Pom.  Eq.  Jur.  5  658. 


§   54)  '  CONSTRUCTIVE    NOTICE.  149 

•would  have  been  discovered  by  an  inquiry 
suggested  by  the  recitals  contained  in  any 
such  instrument. 

This  doctrine  is  of  universal  recognition,  both  in  this  coun- 
try and  Great  Britain,  subject,  however,  to  such  refinements 
and  modifications  as  the  peculiarities  of  adjudicated  cases 
have  from  time  to  time  demanded.1  It  is  the  duty  of  a 
purchaser  of  real  property  to  inspect  all  the  title  papers  in 
his  vendor's  chain  of  title,  and  he  is,  therefore,  presumed  to 
know  every  matter  affecting  the  title  which  appears  therein, 
and  also  in  all  other  deeds  and  instruments  recited  or  referred 
to  therein,  as  limiting  or  affecting  the  title  to  the  property 
conveyed.2  It  has  even  been  held  that  a  purchaser  is  not 
excused  from  inspecting  a  deed,  which  he  knows  affects  the 
land,  by  the  vendor's  statement  that  it  contains  nothing 
which  renders  an  inspection  necessary,3  though  it  is  other- 
wise where  the  purchaser  does  not  know  that  the  land  is 
affected  by  a  prior  deed  or  settlement,  and  is  told  by  the 
vendor  that  it  is  not.4  It  is  not  necessary  that  the  antecedent 

§  54.     i  Wade,  Notice,  §  310. 

2  Moore  v.  Bennett,  2  Ch.  Cas.  246;  Bacon  v.  Bacon,  Toth.  133; 
Bisco  v.  Earl  of  Banbury,  1  Ch.  Oas.  287;  Wilson  v.  Hart,  1  Ch. 
App.  463;  Deason  v.  Taylor,  53  Miss.  697;  Wiseman  v.  Hutchinson, 

20  Ind.  40;  Burch  v.  Carter,  44  Ala.  115;  Major  v.  Bukley,  51  Mo. 
227,  231;  Willis  v.  Gay,  48  Tex.  463,  26  Am.  Rep.  328;  Pringle  v. 
Dunn,  37  Wis,  449,  464,  19  Am.  Rep.  772;  Baker  v.  Mather,  25  Mich. 
51,  53;  Acer  v.  Westcott,  46  N.  Y.  384,  7  Am.  Rep.  355;  White  v. 
Foster,  102  Mass.  375,  380;  Smith  v.  Burgess,  133  Mass.  513;  Roll  v. 
Rea,  50  N.  J.  Law,  264,  12  Atl.  905;  Seiberling  v.  Tipton,  113  Mo.  373, 

21  S.  W.  4.    The  practical  applications  and  illustrations  of  this  rule 
are  very  numerous.     Where,  under  a  description  in  a  deed,  resort 
must  be  had  to  a  prior  deed  to  locate  the  same,  and  the  prior  deed 
so  describes  the  land  that  a  person  reading  it  would  discover  some- 
thing had  been  omitted  from  the  description  therein,  the  purchaser 
is  put  on  inquiry,  and  will  be  charged  with  notice  of  what  an  in- 
quiry would  have  revealed.     Simmons  Creek  Coal  Co.  v.  Doran,  142 
U.  S.  417,  12  Sup.  Ct  239,  35  L.  Ed.  1063.     Notice  of  a  lease  is  no- 
tice of  the  covenants  therein.     Taylor  v.  Stibbert,  2  Ves.  Jr.  437. 
A  recital  in  a  deed  that  the  purchase  money  is  unpaid  is  notice  of 
a  vendor's  lien  to  a  subsequent  purchaser  from  the  grantor.    Dea- 
son v.  Taylor,  53  Miss.  697;  Tydings  v.  Pitcher,  82  Mo.  379;  Wise- 
man v.  Hutchinson,  20  Ind.  40;   Willis  T.  Gay,  48  Tex.  463,  26  Am. 
Rep.  328. 

a  Patman  v.  Harland,  17  Ch.  Div.  355. 
*  Jones  T.  Smith,  1  Hare,  43. 


150  PRIORITIES    AND    NOTICE.  (Ch.   5 

deed  or  other  instrument,  through  which  the  title  is  traced, 
should  contain  such  explicit  information  of  collateral  rights 
or  interests  in  the  property  purchased  as  would  dispense 
•with  further  proof.  If  such  deed  or  other  instrument  con- 
tain a  reference  to  another  deed  not  in  the  chain  of  title, 
the  purchaser  has  notice  of  such  collateral  deed  and  of  its 
contents,  and  will  be  bound  thereby.6  And  this  is  so  wheth- 
er such  collateral  deed  be  recorded  or  unrecorded."  But 
the  reference  to  collateral  rights  and  interests  must  be  suf- 
ficiently explicit  to  arouse  the  suspicion  or  arrest  the  atten- 
tion of  a  person  of  ordinary  care.7  The  rule  is  only  appli- 
cable to  cases  where  the  purchaser  or  incumbrancer  is 
chargeable  with  gross  negligence  in  not  pursuing  an  inquiry 
as  to  the  collateral  rights  or  interests  so  referred  to.8  But 
a  purchaser  or  incumbrancer  is  not  charged  with  notice 
of  any  fact  collateral  and  foreign  to  the  interest  or  claim 
which  he  has  acquired  in  the  property.*  Nor  is  he  compelled 
to  inquire  into  recitals  contained  in  collateral  deeds  which  do 
not  deal  with  the  subject-matter  of  the  transaction  to  which 
he  is  a  party.10  The  doctrine  only  applies  to  recitals  in  deeds 
executed  prior  to  the  time  when  the  purchaser  or  incum- 
brancer acquires  his  title.  It  cannot  refer  to  deeds  which 
are  in  contemplation,  although  they  should  afterwards  be- 
come operative.11 

•  George  v.  Kent,  7  Allen  (Mass.)  16;  Judson  v.  Dada,  79  N.  Y. 
873,  379;  Deason  v.  Taylor,  53  Miss.  697;  Wiseman  v.  Hutchinson, 
20  Ind.  40;  Thompson  v.  Sheppard,  85  Ala.  611,  5  South.  334:  Tyd- 
Ings  v.  Pitcher,  82  Mo.  379;  Letter  v.  Pike,  127  111.  287,  20  N.  B.  23. 

•  Howard  v.  Chase,  104  Mass.  249;  White  v.  Foster,  102  Mass.  375, 
880;  Baker  v.  Mather,  25  Mich.  51;  Garrett  v.  Puckett,  15  Ind.  485; 
Boss  v.  Worthlngtoa,  11  Minn.  438  (Gil.  323),  83  Am.  Dec.  95;   Price 
v.  McDonald,  1  Md.  403,  54  Am.  Dec.  657;  Hancock  v.  McAvoy,  151 
Pa.  439,  25  Atl.  48;  Martin  v.  Neblett,  86  Term.  383,  7  S.  W.  123; 
;i:tna  Life  Ins.  Co.  v.  Bishop,  69  Iowa,  645,  29  N.  W.  761. 

T  Acer  v.  Westcott,  46  N.  Y.  384,  7  Am.  Rep.  355. 

•  Id. 

••Burch  T.  Carter,  44  Ala.  115,  117;  Mueller  v.  Engeln,  12  Bush 
(Ky.)  441  (in  which  case  it  was  held  that  a  purchaser  of  land  is 
not  chargeable  with  constructive  notice  of  a  clause  in  a  deed  in  his 
claim  of  title  reserving  a  lien  for  the  purchase  price  of  personalty 
also  conveyed  by  the  deed). 

10  Kansas  City  Land  Oo.  v.  Hill,  87  Tenn.  589,  11  S.  W.  797,  cit- 
ing Bigelow,  Estop.  341;  2  Devi.  Deeds,  ?§  1000,  1006. 

«  Cothay  T.  Sydenham,  2  Brown,  Oh.  391.    See,  also,   Cook   v. 


§   55)  LIB    PENDENS.  151 


LIS  FENDENS. 

66.  A  purchase  of  real  property  in  litigation  (pen- 
dente  lite),  although  for  a  valuable  consider- 
ation, and  without  any  express  or  implied 
notice  in  point  of  fact,  affects  the  purchaser 
in  the  same  manner  as  if  he  had  such  notice, 
and  he  will  accordingly  be  bound  by  the 
judgment  or  decree  in  the  suit. 

The  subject  of  Us  pendens  is  usually  treated  as  forming 
part  of  the  equitable  doctrine  of  constructive  notice,1  but 
in  reality  the  doctrine  is  common  to  both  courts  of  law  and 
equity.2  Mr.  Pomeroy  states  that  the  entire  doctrine  is 
contained  in  the  proposition  that  during  the  pendency  of  an 
equitable  suit  neither  party  to  the  litigation  can  alienate 
the  property  in  dispute,  so  as  to  affect  the  rights  of  his 
opponent.  The  rule  is  said  to  rest  upon  the  presumption 
that  every  man  is  attentive  to  what  passes  in  the  courts  of 
justice  of  the  state  or  sovereignty  where  he  resides,  and  to 
be  founded  on  public  policy;  for  otherwise  alienations  and 
transfers  of  title  made  during  the  pendency  of  a  suit  might 
defeat  its  whole  purpose,  and  there  would  be  no  end  to  liti- 
gation.8 In  a  leading  English  case*  it  was  said :  "It  is 
scarcely  correct  to  speak  of  lis  pendens  as  affecting  a  pur- 
chaser through  the  doctrine  of  notice.  It  affects  him,  not 
because  it  amounts  to  notice,  but  because  the  law  does  not 
allow  litigant  parties  to  give  to  others,  pending  the  litigation, 

Travis,  22  Barb.  (N.  Y.)  338;  Clabaugh  v.  Byerly,  7  Gill  (Md.)  354, 
48  Am.  Dec.  575. 

§  55.  i  Story,  Eq.  Jur.  f  405;  Chancellor  Kent,  In  Murray  v.  Bal- 
lou,  1  Johns.  Ch.  (N.  Y.)  566. 

a  Sorrell  v.  Carpenter,  2  P.  Wms.  482. 

»  Story,  Eq.  Jur.  §§  405,  406;  Leitch  v.  Wells,  48  N.  Y.  585,  608, 
citing  Murray  v.  Lylburn,  2  Johns.  Ch.  (N.  Y.)  441;  Green  v.  Slayter, 
4  Johns.  Ch.  (N.  Y.)  38;  Hopkins  v.  McLaren,  4  Cow.  (N.  Y.)  667; 
Murray  v.  Blatchford,  1  Wend  (N.  Y.)  583,  19  Am.  Dec.  537;  Jackson 
v.  Andrews,  7  Wend.  (N.  Y.)  152.  See,  also,  Green  v.  Rick,  121  Pa. 
130,  15  Atl.  497;  Dovey's  Appeal,  97  Pa.  153;  Boulden  v.  Lanahan, 
29  Md.  200. 

*  Bellamy  v.  Sabine,  1  De  Gex  &  J.  566,  578. 


152  PRIORITIES    AND    NOTICE.  (Ch.   5 

rights  to  the  property  in  dispute,  so  as  to  prejudice  the  oppo- 
site party."  The  object  of  the  rule  is  to  bring  litigation  to 
an  end,  to  prevent  new  suits,  the  introduction  of  new  parties, 
and  to  lead  the  existing  controversy  to  a  close.5  The  rule 
is  a  hard  one,  and  not  a  favorite  with  the  courts,  and  a  party 
claiming  the  benefit  of  it  must  clearly  bring  his  case  within 
it.  It  is  said  that,  if  he  makes  a  slip  in  his  proceedings,  the 
court  will  not  assist  him  to  rectify  his  mistake.* 

Requisites  of  the  Lis  Pendens. 

The  particular  property  involved  in  the  suit  must  be  so 
definitely  described  and  identified  in  the  pleading  that  any 
one  reading  it  can  learn  thereby  what  property  is  intended  to 
be  made  the  subject  of  litigation.7  It  is,  perhaps,  not  neces- 
sary that  the  land  be  described  by  metes  and  bounds.  Rea- 
sonable certainty  as  to  the  intent  would  be  sufficient.8  A 
lis  pendens,  and  its  consequent  notice,  begins  to  operate 
when  the  suit  is  properly  commenced  by  the  service  of  pro- 
cess," and  continues  to  operate  until  the  rendition  of  final 
judgment.10  A  purchaser,  pendente  lite,  of  the  subject  of 
the  litigation,  if  he  buys  in  good  faith,  and  without  notice  of 
the  rights  and  interests  of  the  litigants,  is  not  affected  by  the 
suit  pending,  or  by  notice  of  its  pendency,  unless  the  suit 
has  been  prosecuted  with  due  diligence.11  Where  the  suit 

•  Holbrook  v.  Zinc  Co.,  57  N.  Y.  616,  627;  Newman  v.  Chapman,  2 
Rand.  (Va.)  93,  14  Am.  Dec.  766. 

«  Leltch  v.  Wells,  48  N.  Y.  585,  605;  Holbrook  v.  Zinc  Co.,  57  N.  Y. 
616.  627;  Sorrell  v.  Carpenter,  2  P.  Wms.  482;  3  Sugd.  Vend.  460. 

T  Allen  v.  Poole,  54  Miss.  323,  333;  Houston  v.  Timmeruian,  17 
Or.  4!><J,  21  Pac.  1037,  4  L.  R,  A.  716,  11  Am.  St  Rep.  848;  Miller  v. 
Sherry,  2  Wall.  237,  17  L.  Ed.  827;  Russell  v.  Klrkbride,  62  Tex. 
459;  Griffith  v.  Griffith,  9  Paige  (N.  Y.)  315,  317;  Low  v.  Pratt,  53 
111.  438. 

•  Pom.  Eq.  Jar.  f  634. 

•  Franklin  Sav.  Bank  v.  Taylor,  131  111.  376,  23  N.  E.  397;  Staples 
T.  White,  Handley  &  Co.,  88  Tenn.  30,  12  S.  W.  339;  Stone  v.  Tyree, 
80  W.  Va.  687,  5  S.  B.  878;  Duff  v.  McDonough,  155  Pa.  10,  25  Atl. 
608;  Murray  v.  Ballou,  1  Johns.  Ch.  (N.  Y.)  566;  Allen  v.  Poole,  54 
Miss.  323,  324.    A  different  rule  may  be  In  force  under  certain  stat- 
utes.    Burleson  v.  McDermott,  57  Ark.  229,  21  S.  W.  222;  Roths- 
child's Adm'r  T.  Kohn,  93  Ky.  107,  19  S.  W.  180,  40  Am.  St  Rep. 
184. 

10  Turner  v.  Crebill,  1  Ohio,  372;  Page  T.  Waring,  76  N.  Y.  463; 
Worsley  v.  Earl  of  Scarborough,  3  Atk.  392. 

«  Hayes  T.  Nourse,  114  N.  Y.  595,  22  N.  E.  40,  11  Am.  St  Bep. 


§    55)  LIS    PENDENS.  153 

abates  by  the  death  of  a  party,  the  lis  pendens  will  not  lose 
its  force  as  a  notice,  if  it  be  revived  without  unreasonable 
delay.12  The  lis  pendens  may  be  operative  after  the  rendi- 
tion of  the  judgment  if  an  appeal  is  taken,  and  diligently 
prosecuted.13  The  abandonment  or  voluntary  dismissal  of 
the  suit  prevents  the  application  of  this  doctrine.14 

Applicable  to  what  Suits. 

The  doctrine  of  notice  by  lis  pendens  applies  generally  to 
all  suits  involving  the  title  to  a  specific  parcel  of  real  estate, 
or  affecting  equitable  interests,  rights,  and  estates  therein, 
or  enforcing  charges,  liens,  and  incumbrances  thereon. 
Among  the  kinds  of  actions  in  which  the  doctrine  is  fre- 
quently employed  are  suits  for  the  foreclosure  of  mortgag- 
es,15 and  vendors'  liens,18  to  enforce  the  specific  performance 
of  contracts  for  the  sale  of  real  estate,17  and  in  all  suits  for  the 
enforcement  of  a  charge  on  land.18  And,  where  an  action 
of  ejectment  is  instituted  against  an  occupant  of  real  prop- 
erty, one  coming  into  possession  thereof,  by  assignment 
or  otherwise,  pendente  lite,  will  be  bound  by  the  judgment, 
although  he  is  not  made  a  party  to  the  litigation.18  There 

700,  citing  Preston  v.  Tubbin,  1  Vern.  286;  Kinsman  v.  Kinsman, 
Tarn.  399;  Murray  v.  Ballou,  1  Johns.  Ch.  (N.  Y.)  566;  Hayden  v.  Buck- 
lin,  9  Paige  (N.  Y.)  512;  Myrick  v.  Selden,  36  Barb.  (N.  Y.)  15;  Her- 
rington  v.  McCollum,  73  111.  476,  483;  Watson  v.  Wilson,  2  Dana  (Ky.) 
406,  26  Am.  Dec.  459;  Clarkson  v.  Morgan's  Devisees,  6  B.  Mon. 
(Ky.)  441;  Erhman  v.  Kendrick,  1  Mete.  (Ky.)  146;  Petree  v.  Bell,  2 
Bush  (Ky.)  58.  And  see,  also,  Durand  v.  Lord,  115  111.  610,  4  N.  E. 
483;  Hammond  v.  Paxton,  58  Mich.  393,  25  N.  W.  321. 

12  Debell  v.  Foxworthy's  Heirs,  9  B.  Mon.  (Ky.)  228;  Watson  v. 
Wilson,  2  Dana  (Ky.)  406,  26  Am.  Dec.  459;  Herrington  v.  Mc- 
Collum, 73  111.  476. 

is  Oilman  v.  Hamilton,  16  111.  225;  Moore  v.  Moore,  67  Tex.  293, 
8  S.  W.  284.  A,  purchaser  after  a  final  decree  and  before  a  bill  of 
revision  is  filed  is  not  a  purchaser  pendente  lite.  Ludlow's  Heirs 
v.  Kidd's  Ex'rs,  3  Ohio,  544. 

i*  Valentine  v.  Austin,  124  N.  Y.  400,  26  N.  E.  973;  Allison  v. 
Drake,  145  111.  500,  32  N.  E.  537. 

IB  Chapman  v.  West,  17  N.  Y.  125;  Center  v.  Bank,  22  Ala.  743; 
McCutchen  v.  Miller,  31  Miss.  65. 

i«  Center  v.  Bank,  22  Ala.  743. 

"  Blanchard  v.  Ware,  43  Iowa,  530. 

is  Sea  brook  v.  Brady,  47  Ga.  650;  Salisbury  v.  Mores,  7  Lans. 
(N.  Y.)  359,  3G5. 

i»  Bolin  v.  Connelly,  73  Pa.  336;  Hersey  v.  Turbett,  27  Pa.  418; 
Hill  v.  Oliphant,  41  Pa.  364;  Howard  v.  Kennedy's  Ex'rs,  4  Ala. 


154  PRIORITIES    AND    NOTICE.  (Ch.  5 

has  been  some  diversity  of  opinion  as  to  whether  the  doctrine 
applies  to  an  action  for  divorce,  where  the  wife  seeks  to 
charge  the  husband's  realty  with  alimony.  The  general  and 
the  better  rule  is  that  the  doctrine  does  not  apply  to  such 
suits,10  although,  where  the  pleading  definitely  describes 
the  property  sought  to  be  charged,  there  would  seem  to  be 
some  justification  for  its  application.21  As  a  general  rule, 
the  doctrine  does  not  extend  to  ordinary  suits  concerning 
personal  property.**  But,  under  special  circumstances,  it 
may  be  extended  to  mortgages  and  other  securities  held  in 
trust,28  and  has  been  held  to  apply  to  a  suit  brought  for  the 
purpose  of  settling  partnership  affairs,  and  to  enforce  a  part- 
ner's lien  upon  partnership  property.2* 

692,  39  Am.  Dec.  307;  Jackson  v.  Tuttle,  9  Cow.  (N.  T.)  233;  Jones 
v:  Chiles,  2  Dana  (Ky.)  25. 

*o  Scott  v.  Rogers,  77  Iowa,  483,  42  N.  W.  377;  Houston  v.  Tim- 
merman,  17  Or.  499,  21  Pac.  1037,  4  L.  R.  A.  716,  11  Am.  St  Rep. 
848. 

ai  Wilkinson  v.  Elliott,  43  Kan.  590,  23  Pac.  614,  19  Am.  St  Rep. 
158;  Powell  v.  Campbell,  20  Nev.  232,  20  Pac.  156,  2  L.  R.  A.  615, 
19  Am.  St  Rep.  350. 

«  Miles  v.  Lefl,  60  Iowa,  168,  14  N.  W.  233;  Gardner  v.  Peckham, 
13  R.  I.  102;  Hill  v.  Scotland  Co.  (C.  C.)  34  Fed.  208. 

z»  Murray  v.  Lylburn,  2  Johns.  Ch.  (N.  Y.)  441,— which  is  a  lead- 
Ing  case  on  this  subject  The  chancellor  said:  "If  he  [the  trustee] 
possessed  cash,  as  proceeds  of  the  trust  estate,  or  negotiable  paper 
not  due,  or  perhaps  movable  personal  property,  such  as  horses, 
cattle,  grain,  etc.,  I  am  not  prepared  to  say  the  rule  is  to  be  car- 
ried so  far  as  to  affect  such  sales.  The  safety  of  commercial  deal- 
Ings  would  require  a  limitation  of  the  rule;  but  bonds  and  mort- 
gages are  not  the  subject  of  ordinary  commerce,  and  the  rule  may 
very  well  be  applied  to  them."  See,  also,  Leitch  v.  Wells,  48  N.  Y. 
585,  613,  where  the  court  held  that  "the  doctrine  of  constructive 
notice  by  11s  pendens  has  never  yet  been  applied  to  ordinary  com- 
mercial paper,  nor  to  bills  of  lading,  nor  to  government  or  cor- 
porate bonds  payable  to  bearer.  Indeed,  I  do  not  find  that  it  has 
ever  been  applied  to  any  of  the  articles  of  ordinary  commerce. 
Public  policy  does  not  require  that  it  should  be  thus  applied.  On 
the  contrary,  its  application  to  such  property  would  work  great 
mischief,  and  lead  to  great  embarrassments."  Farmers'  Loan  & 
Trust  Co.  v.  Railroad  Co.,  4  C.  C.  A.  561,  54  Fed.  759;  Holbrook  v. 
Zinc  Co.,  57  N.  Y.  616;  Warren  Co.  v.  Marcy,  97  U.  S.  96,  24  L.  Ed. 
977. 

»«  Hoxle  v.  Oarr,  1  Sumn.  173,  Fed.  Gas.  No.  6,802;  Dresser  T. 
Wood,  15  Kan.  344, 


§    55)  LIS    PENDENS.  155 

Persons  Affected  Try  Notice. 

The  lis  pendens  will  not  operate  as  constructive  notice 
against  a  purchaser  unless,  at  the  time  the  property  which 
is  the  subject  of  the  suit  is  purchased,  the  grantor  was  a  party 
to  the  suit.28  And  this  is  so  although  the  grantor  is  subse- 
quently brought  in  by  summons,  or  may  vokmtarily  appear.28 
In  some  of  the  states  it  has  been  held  that  the  notice  of  the 
pendency  of  the  suit  does  not  extend  to  persons  living  with- 
out the  territorial  jurisdiction  of  the  court  in  which  the  ac- 
tion is  pending.27  But  in  other  states  it  has  been  held,  by 
virtue  of  the  constitutional  provision  that  "full  faith  and 
credit  shall  be  given  in  each  state  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  state,"  28  that  pur- 
chases made  in  one  state  pending  an  action  brought  in  an- 
other state  must  be  subjected  to  the  rule  of  lis  pendens.2' 

Statutory  Enactments. 

In  England,  and  in  most  of  the  American  states,  it  is  now 
provided  by  statute  that  the  pendency  of  a  suit  does  not 
charge  a  purchaser  with  constructive  notice,  unless  notice 
is  filed  in  some  designated  public  office.  It  may  be  stated  as 
a  general  proposition,  however,  that  these  statutes  do  not 
abrogate  the  foregoing  special  rules,  but  merely  require  the 
filing  of  the  proper  notice  before  they  come  into  effect.10 

25  Green  v.  Rock,  121  Pa.  130,  15  Atl.  497;  Brundagee  v.  Biggs,  25 
Ohio  St  652,  656;  Oarr  v.  Callaghan,  3  Litt.  (Ky.)  365;  Miller  v. 
Sherry,  2  Wall.  237,  17  L.  Ed.  827  (where  the  court  said):  "We  ap- 
prehend that,  to  affect  a  person  as  a  purchaser  pendente  lite,  It  Is 
necessary  to  show  that  the  holder  of  the  legal  title  was  impleaded 
before  the  purchase  which  is  to  be  set  aside." 

2«  French  v.  Loyal  Co.,  5  Leigh  (Va.)  627;  Stuyvesant  v.  Hone,  1 
Sandf.  Ch.  (N.  Y.)  419;  Parks  v.  Jackson,  11  Wend.  (N.  Y.)  442,  25 
Am.  Dec.  656;  Parsons  v.  Hoyt,  24  Iowa,  154. 

27  Holbrook  v.  Zinc  Co.,  57  N.  Y.  616,  625;  Shelton  Y.  Johnson,  4 
Bneed  (Tenn.)  672,  70  Am.  Dec.  265. 

zs  Const.  TJ.  S.  art  4,  §  1. 

2»  Fletcher  v.  Ferrel,  9  Dana  (Ky.)  372,  35  Am.  Dec.  143;  Carr  v. 
Coal  Co.,  15  Mo.  App.  551. 

so  Pom.  Eq.  Jur.  §  640,  note. 


156  BONA    FIDE    PUUCIIASERS    WITHOUT    NOTICE.  l^Cli.    6 

CHAPTER   VL 

BONA  FIDE  PURCHASERS  WITHOUT  NOTICE. 

66.  Doctrine  of  Bona  Fide  Purchase. 

67.  Application  of  Doctrine. 

68.  What  Constitutes  a  Bona  Fide  Purchase. 

DOCTEINE  OF  BONA  FIDE  PURCHASE. 

66.  A  court  of  equity  will  not  exercise  its  jurisdic- 
tion against  a  bona  fide  purchaser  without 
notice  and  for  a  valuable  consideration. 

This  doctrine  is  of  universal  application  in  cases  where  the 
parties  possess  conflicting  interests  or  estates  in  the  same 
subject-matter.1  In  its  original  form  it  was  purely  equitable, 
and  had  no  place  in  the  common  law.  Questions  involving 
the  priority  of  legal  estates  were  determined  according  to 
their  intrinsic  merits  and  validity.  This  doctrine  can  only 
be  employed  in  equity  where  the  controversy  arises  between 
parties,  one  of  whom  holds  a  legal  title  and  the  other  an 
equitable  title,  or  where  they  both  hold  equitable  titles. 

By  the  recording  acts  of  the  several  states  the  equitable 
doctrine  of  bona  fide  purchase  has  been  extended  to  all  con- 
veyances and  mortgages,  and  many  other  estates  and  inter- 
ests to  which  the  doctrine  was  not  originally  applicable. 
The  doctrine  has,  therefore,  become  of  universal  use  in  all 
courts  for  determining  the  validity  of  legal  as  well  as  equi- 
table titles.  It  is  not  our  purpose  to  discuss  the  doctrine  as 
affected  by  the  recording  acts.  It  will  suffice  to  call  atten- 
tion to  a  number  of  general  rules  and  principles  which  have 
arisen  by  the  application  of  the  doctrine  in  courts  of  equity. 

f  66.  i  Jerrard  v.  Saunders,  2  Ves.  Jr.  454,  457;  Boone  v.  Chiles, 
10  Pet  177,  210,  9  L.  Ed.  388. 


§    57)  APPLICATION    OF   DOCTBIiNE.  157 


APPLICATION  OF  DOCTKINE. 

67.  In  the  application  of  the  doctrine,  equity  does 
not  determine  -which  of  the  conflicting  in- 
terests or  estates  is  the  better.  The  merits 
of  the  litigant  parties  are  not  considered. 

The  whole  doctrine  rests  on  this  refusal  of  a  court  of  equity 
to  interfere  as  against  the  subsequent  bona  fide  purchaser. 
The  most  frequent  application  of  the  doctrine  is  where  the 
holder  of  an  equitable  estate  or  interest  brings  suit  against 
a  subsequent  bona  fide  purchaser  of  the  legal  estate.  In 
such  a  case  the  defendant  is  entitled  to  the  protection  of  the 
court,  and  his  interests  so  acquired  will  not  be  molested.1 

The  authorities  are  conflicting  as  to  whether  a  defendant, 
who  is  a  subsequent  bona  fide  purchaser  of  a  mere  equitable 
interest,  can  avail  himself  of  the  defense  permitted  by  an 
application  of  this  doctrine  as  against  a  plaintiff  who  is  the 
holder  of  the  legal  title.  The  weight  of  authority,  however, 
seems  to  be  in  favor  of  permitting  the  defendant  in  such  a 
case  to  avail  himself  of  such  defense.2 

Another  class  of  cases  in  which  the  doctrine  is  often  ap- 
plied is  where  several  purchasers  or  incumbrancers  each 
claim  an  equity,  and  one  who  is  later  or  last  in  time  acquires 
an  outstanding  legal  estate,  or  any  other  legal  advantage. 
Such  purchaser  or  incumbrancer  will  not  be  deprived  of 
this  advantage  by  a  court  of  equity.  To  a  bill  filed  against 
him  for  this  purpose  by  a  prior  purchaser  or  incumbrancer, 
the  defendant  may  maintain  the  plea  of  purchase  for  valuable 
consideration  without  notice,  for  the  principle  is  that  a  court 
of  equity  will  not  disarm  a  purchaser ;  that  is,  will  not  take 
from  him  the  shield  of  any  legal  advantage.3  And,  where 

§  57.  i  Demarest  v.  Wynkoop,  3  Johns.  Oh.  (N.  Y.)  129,  147,  8 
Am.  Dec.  467;  Varick  v.  Briggs,  6  Paige  (N.  Y.)  323;  Sumner  v. 
Waugh,  56  111.  531;  Robbing  v.  Moore,  129  111.  30,  21  N.  E.  934; 
Wells  v.  Morrow,  38  Ala.  125. 

«Bassett  v.  Nosworthy,  Gas.  t.  Finch,  102;  Id.,  2  White  &  T. 
Lead.  Cas.  Eq.  (Text-Book  Series)  pt.  1,  p.  6;  Lane  v.  Jackson,  20 
Beav.  535;  Hope  v.  Liddell,  21  Beav.  183;  Flagg  v.  Mann,  2  Sumn. 


s  Phillips  v.  Phillips,  4  De  Gex,  F.  &  J.  208.  See,  also,  Carlisle 
v.  Jumper,  81  Ky.  282;  Zollman  v.  Moore,  21  Grat  (Va.)  313;  Camp- 
bell v.  Brackenridge,  8  Blackf.  (Ind.)  471. 


158  BONA    FIDE    PURCHASERS    WITHOUT    NOTICE.  (Ch.  6 

an  equitable  remedy  arises  to  set  aside  a  deed  for  fraud  or 
accident,  or  to  correct  it  for  a  mistake,  a  subsequent  pur- 
chaser of  the  title  from  one  against  whom  the  remedy  could 
have  been  maintained  may  maintain  the  plea  of  purchase  for 
valuable  consideration  without  notice,  and  the  court  will  not 
interfere.4 


WHAT   CONSTITUTES  A  BONA  FIDE  PURCHASE. 

68.  There  are  three  elements  essential  to  consti- 
tute a  bona  fide  purchase: 

(1)  A  valuable  consideration. 

(2)  Absence  of  notice  of  prior  adverse  claims. 

(3)  Presence  of  good  faith. 

Valuable  Consideration. 

"Considerations,"  as  used  by  most  text-writers  on  the  sub- 
ject of  contracts,  are  classified  as  "good"  and  "valuable." 
The  definition  of  Blackstone  is:  "A  'good'  consideration  is 
such  as  that  of  blood,  or  of  natural  love  and  affection,  when  a 
man  grants  an  estate  to  a  near  relative ;  being  founded  on 
motives  of  generosity,  prudence,  and  natural  duty.  A  'valu- 
able' consideration  is  such  as  money,  marriage,  or  the  like, 
which  the  law  esteems  an  equivalent  given  for  a  grant ;  and 
is,  therefore,  founded  in  motives  of  justice."  *  A  valuable 
consideration,  within  the  meaning  of  the  doctrine  of  bona 
fide  purchases,  is  usually  in  some  way  pecuniary;  that  is, 
something  of  actual  value,  capable  of  being  measured  by  a 
pecuniary  standard.*  A  person  who  has  acquired  title  as  a 

486,  Fed.  Cas.  No.  4,847;  Union  Canal  Co.  r.  Young,  1  Whart.  (Pa.) 
410,  431,  30  Am.  Dec.  212;  Bailsman  v.  Kelley,  38  Minn,  197,  36 
N.  W.  333,  8  Am.  St  Rep.  661. 

«  This  Is  the  third  class  where  the  defense  Is  available  mentioned 
by  Lord  Westbury  In  Phillips  v.  Phillips,  4  De  Gex,  F.  &  G.  208. 
And  see  Sturge  v.  Starr,  2  Mylne  &  K.  196;  Maiden  v.  Men  ill,  2 
Atk.  8;  Marshall  v.  Collett,  1  Young  &  C.  Exch.  238;  Harvey  v. 
Woodhouse,  Oas.  t  King,  80;  logon's  Adm'rs  y.  Rogers,  12  Ga. 
281,  292;  Whitman  v.  Weston,  30  Me.  285. 

1  58.     i  BL  Comm.  297;   Pars.  Cont  p.  430. 

»  Story  v.  Lord  Windsor,  2  Atk.  630;  Hardlngham  T.  Nicholls, 
8  Atk.  304;  Weaver  v.  Barden.  49  N.  Y.  286;  De  Lancey  v.  Stearns, 
66  N.  Y.  157;  Westbrook  v.  Gleason,  79  N.  Y.  23,  28;  Roxborough 
T.  Messlck,  6  Ohio  SL  448,  67  Am.  Dec.  346;  Palmer  v.  Williams,  24 


§    58)          WHAT   CONSTITUTES   A   BON  A    FIDE    PURCHASE.  159 

donee,  or  in  any  other  manner,  as  a  volunteer,  cannot  be 
considered  a  bona  fide  purchaser.8  If  the  consideration  is  in 
fact  a  valuable  one,  the  court  will  not  inquire  whether  it  is 
adequate,4  unless  the  inadequacy  is  so  great  as  to  amount  to 
evidence  of  bad  faith.6  Loaning  money,  an  exchange  or 
transfer  of  property,  or  the  performance  of  a  valuable  service 
may  be  a  sufficient  valuable  consideration.'  So,  also,  will 
the  surrender  or  release  of  an  existing  legal  right,  and  the 
assumption  of  a  new  obligation  which  is,  in  its  nature,  ir- 
revocable, or  from  which  he  will  not  be  relieved  by  a  court  of 
equity,  constitute  a  sufficient  valuable  consideration.7 

Where  property  is  conveyed  as  security  for  an  antecedent 
debt,  it  has  been  generally  held  that  the  transfer  is  not  made 
for  a  valuable  consideration,  and  the  transferee  is  not,  there- 
fore, a  bona  fide  purchaser.  This  is  based  upon  the  fact  that 
the  creditor  has  not  parted  with  anything  of  value,  and  that 
by  the  acceptance  of  such  security  he  has  not  surrendered 
a  legal  right,  or  assumed  any  responsibility.8  In  many  of 

Mich.  328;  Keys  T.  Test,  33  111.  316;  Roseman  v.  Miller,  84  HI. 
297;  Haughwout  v.  Murphy,  21  N.  J.  Eq.  118.  No  merely  moral 
consideration  is  sufficient.  Peek  v.  Peek,  77  Gal.  106,  19  Pac.  227, 
1  L.  R.  A.  185.  A  devisee  is  not  a  purchaser  for  value.  Jackson  v. 
Lynch,  129  111.  72,  21  N.  E.  580,  22  N.  E.  246. 

«  Roseman  v.  Miller,  84  111.  297;  Bowen  v.  Prout,  52  111.  354; 
Boon  v.  Barnes,  23  Miss.  136;  Frost  v.  Beekman,  1  Johns.  Oh.  (N. 
Y.)  288;  Petry  v.  Ambrosher,  100  Ind.  510;  Hughes  v.  Berrien,  70 
Ga.  273;  Ford  v.  Ticknor,  169  Mass.  276,  47  N.  E.  877. 

*  Basset  v.  Nos worthy,  2  White  &  T.  Lead.  Gas.  Eq.  1;  Wood  v. 
Chapin,  13  N.  Y.  509,  67  Am.  Dec.  62;  Skerrett  v.  Society,  41  Ohio 
St.  606;  Gary  v.  White,  52  N.  Y.  138,  142. 

B  Worthy  v.  Caddell,  76  N.  O.  82;  Dunn  v.  Barnum,  2  C.  C.  A.  265, 
51  Fed.  355;  Connecticut  Mut  Life  Ins.  Co.  v.  Smith,  117  Mo.  261, 
22  S.  W.  623. 

e  Gerson  v.  Pool,  31  Ark.  85  (loan  of  money);  Bowen  v.  Prout,  52 
111.  354  (exchange  of  lands);  Glidden  v.  Hunt,  24  Pick.  (Mass.)  22; 
Palmer  v.  Williams,  24  Mich.  328;  Kiersted  v.  Ourry,  4  Paige  (N. 
Y.)  9;  Conrad  v.  Insurance  Co.,  1  Pet.  386,  7  L.  Ed.  189. 

T  Assumption  of  new  liability,  Williams  v.  Shelly,  37  N.  Y.  375; 
surrender  of  title,  Westbrook  v.  Gleason,  79  N.  Y.  23,  36.  And  see, 
also,  Youngs  v.  Lee,  12  N.  Y.  551;  Meads  v.  Bank,  25  N.  Y.  143, 
82  Am.  Dec.  331;  Struthers  v.  Kendall,  41  Pa.  214,  218,  80  Am.  Dec. 
610;  Goodman  v.  Simonds,  20  How.  343,  371,  15  L.  Ed.  934. 

«  Alexander  v.  Caldwell,  55  Ala.  517;  Short  v.  Battle,  52  Ala. 
456;  Banks  v.  Long,  79  Ala.  319;  Wells  v.  Morrow,  38  Ala.  125; 
Seymour  v.  McKinstry,  106  N.  Y.  230,  12  N.  E.  348,  14  N.  E.  94; 
Young  v.  Guy,  87  N.  Y.  457,  462;  Van  Heusen  v.  Radcliff,  17  N.  Y. 
580,  72  Am.  Dec.  480;  Morse  v.  Godfrey,  3  Story,  364,  389,  Fed. 


160  BONA    FIDE   PURCHASERS    WITHOUT    NOTICE.  (Ch.   6 

the  states  even  this  rule  has  been  disapproved,  and  securing 
a  pre-existing  debt  is  held  to  be  a  valuable  consideration.* 
But  where  the  property  is  conveyed  in  complete  satisfaction 
of  an  antecedent  debt,  or  for  the  purpose  of  extending  the 
time  of  payment  thereof,  the  weight  of  authority  seems  to 
favor  the  rule  that  the  transfer,  in  such  cases,  is  made  for  a 
valuable  consideration.10  Where  the  antecedent  creditor 

Oas.  No.  9,856;  Mingus  v.  Condlt,  23  N.  J.  Eq.  313;  Wheeler  v. 
Kirtland,  24  N.  J.  Eq.  552;  Ashton's  Appeal,  73  Ph..  153,  162;  Gar- 
rard  v.  Railroad  Co.,  29  Pa.  154,  159;  Liggett  Spring  &  Axle  Co.'s 
Appeal,  111  Pa.  291,  2  Atl.  684;  Buffington  v.  Gerrish,  15  Mass. 
156;  Goodwin  v.  Trust  Co.,  152  Mass.  189,  25  N.  E.  100;  Merchants' 
Ins.  Co.  of  Providence  v.  Abbott,  131  Mass.  397;  Sleeper  v.  Davis, 
64  N.  H.  59,  6  Atl.  201,  10  Am.  St.  Rep.  377;  Poor  v.  Woodburn.  25 
Vt  235.  But  it  has  been  generally  held,  except  in  New  York  and 
a  few  other  states,  that,  where  negotiable  paper  is  taken  as  se- 
curity for  an  antecedent  indebtedness,  this  rule  does  not  apply, 
and  a  bona  fide  holder  taking  such  paper  as  security  is  unaffected 
by  equities  or  defenses  between  the  prior  parties  of  which  he  had 
no  notice.  See  Swift  v.  Tyson,  16  Pet  1,  10  L.  Ed.  865;  Brooklyn 
&  N.  R.  Co.  v.  Bank,  102  U.  S.  14,  26  L.  Ed.  61;  Currie  v.  Misa,  L. 
R.  10  Exch.  153;  Armour  v.  McMicheal,  36  N.  J.  Law,  92;  Hanold 
v.  Kays,  64  Mich.  439,  31  N.  W.  420,  8  Am.  St  Rep.  835;  Fisher 
v.  Fisher,  98  Mass.  303.  The  subject  is  exhaustively  examined  in 
Brooklyn  &  N.  R.  Co.  v.  Bank,  supra.  The  rule  to  the  contrary 
In  New  York,  based  upon  the  decision  of  Coddington  v.  Bay,  20 
Johns.  637,  11  Am.  Dec.  342,  has  since  been  changed  by  the  adop- 
tion of  the  New  York  negotiable  instruments  law  (Laws  1897,  c. 
612,  §  51),  which  is  In  conformity  with  the  rule  In  the  federal 
courts. 

•  A  pre-existing  debt  is  a  valuable  consideration.  See  Lawrence 
v.  Tucker,  23  How.  14,  16  L.  Ed.  474;  Conrad  v.  Insurance  Co., 
1  Pet.  386,  7  L.  Ed.  189;  Shirras  v.  Craig,  7  Cranch,  34,  3  L.  Ed.  260; 
Frey  v.  Clifford,  44  Gal.  335;  Payne  v.  Bensley,  8  Cal.  260,  68  Am. 
Dec.  318;  Robinson  v.  Smith,  14  Cal.  94;  Partridge  v.  Smith,  2 
Blss.  183,  Fed.  Cas.  No.  10,787;  Doolittle  v.  Cook,  75  111.  354;  Man- 
ning v.  McClure,  36  111.  490;  Work  v.  Brayton,  5  Ind.  396;  Wright 
v.  Bundy,  11  Ind.  398;  Aiken  v.  Bruen,  21  Ind.  137;  Wert  T.  Nay- 
lor,  93  Ind.  431;  Adams  v.  Vanderbeck,  148  Ind.  92,  45  N.  E.  645, 
47  N.  E.  24,  62  Am.  St.  Rep.  497.  But,  if  the  mortgage  Is  to  secure 
a  pre-existing  debt,  the  supreme  court  of  Indiana  has  held  other- 
wise in  First  Nat.  Bank  of  Martinsvllle  v.  Insurance  Co.,  129  Ind. 
241,  28  N.  E,  695. 

10  Satisfaction  of  antecedent  debt  a  valuable  consideration,  Saf- 
ford  v.  Wade's  Ex'rs,  51  Ala,  214;  Ohio  Life  Ins.  &  Trust  Co.  v.  Led- 
yard,  8  Ala.  866;  Schluter  v.  Harvey,  65  Cal.  158,  3  Pac.  659;  Foorman 
v.  Wallace,  75  Cal.  552,  17  Pac.  680;  Metropolitan  Bank  v.  Godfrey, 
23  111.  579,  606;  Ruth  v.  Ford,  9  Kan.  17;  Christopher  v.  Christopher, 
64  Md.  583,  3  AtL  296;  Soule  y.  Shotwell,  52  Miss,  236;  Love  v.  Tay- 


§   58)  WHAT    CONSTITUTES    A    BONA    FIDE    PURCHASE.  161 

surrenders  or  cancels  some  security  which  he  already  has 
upon  the  execution  of  a  new  conveyance  or  incumbrance, 
such  creditor  is  a  bona  fide  purchaser  for  a  valuable  con- 
sideration.11 Not  only  must  there  be  a  valuable  considera- 
tion, but  it  must  be  paid  before  the  purchaser  receives  notice 
of  the  prior  adverse  claim  to  the  property  purchased.12  If, 
after  the  contract  has  been  executed,  and  the  title  to  the 
property  delivered,  notice  is  received  of  the  adverse  interest 
before  payment  of  the  consideration,  the  subsequent  pur- 
chaser cannot  avail  himself  of  the  doctrine  of  bona  fide 
purchase.  English  and  American  courts  have  generally 
held,  however,  that,  where  a  part  of  the  purchase  price  has 
been  paid  before  notice,  the  purchaser  will  be  protected  as 
to  the  amount  so  paid,  and  that  as  to  such  amount  he 
will  be  deemed  a  bona  fide  purchaser.13  And  where  the 
consideration  consists  of  an  executory  contract,  bond,  cove- 
nant, bond  and  mortgage,  or  other  nonnegotiable  security 
for  the  price,  and  such  contract  has  not  been  performed,  or 
the  amount  secured  has  not  been  paid  before  notice  of  an 


lor,  26  Miss.  567;  extension  of  time  of  payment,  Atkinson  v.  Brooks, 
26  Vt.  569,  62  Am.  Dec.  592;  Griswold  v.  Davis,  31  Vt.  390,  394; 
Pittsburgh  &  0.  R.  Co.  v.  Barker,  29  Pa.  160,  162;  State  Bank  of  St. 
Louis  v.  Frame,  112  Mo.  502,  20  S.  W.  620;  Hanold  v.  Kays,  64  Mich. 
439,  31  N.  W.  420,  8  Am.  St.  Rep.  835;  Gassen  v.  Hendrick,  74  Cal. 
444,  16  Pac.  242. 

11  Youngs  v.  Lee,  12  N.  Y.  551;   Meads  v.  Bank,  25  N.  Y.  143,  82 
Am.  Dec.  331;    Padgett  v.  Lawrence,  10  Paige  (N.  Y.)  170,  40  Am. 
Dec.  232;    Struthers  v.  Kendall,  41  Pa.  214,  218;    Goodman  v.  Sl- 
monds,  20  How.  343,  371,  15  L.  Ed.  934;    Mobile  Life  Ins.  Co.  v. 
Randall,  71  Ala.  220;   Lane  v.  Logue,  12  Lea  (Tenn.)  681. 

12  Wood  v.  Mann,  1  Sumn.  506,  Fed.  Cas.  No.  17,951;    Flagg  v. 
Mann,  2  Sumn.  486,  Fed.  Cas.  No.  4,847;    Penfield  v.  Dunbar,  64 
Barb.  (N.  Y.)  239;    Sargent  v.  Apparatus  Co.,  46  Hun  (N.  \.)  19; 
Keyser  v.  Angle,  40  N.  J.  Eq.  481,  4  Atl.  641;    Dean  v.  Anderson, 
34  N.  J.  Eq.  496;   Pearce  v.  Jackson,  61  Tex.  642;  Withers  v.  Little, 
56  Cal.  370;   Eversdon  v.  Mayhew,  65  Oal.  163,  3  Pac.  641;  Baldwin 
r.  Sager,  70  111.  503;   Palmer  v.  Williams.  24  Mich.  328;    Kitteridge 
v.  Chapman,  36  Iowa,  348. 

i*  Youst  v.  Martin,  3  Serg.  &  R.  (Pa.)  423;  Mitchell  v.  Dawson, 
23  W.  Va.  86;  Kitteridge  v.  Chapman,  36  Iowa,  348;  Baldwin  v. 
Sager,  70  111.  503;  Birdsall  v.  Cropsey,  29  Neb.  679,  45  N.  W.  921; 
Haughwout  v.  Murphy,  21  N.  J.  Eq.  118;  Juvenal  v.  Jackson,  14 
Pa.  519,  524;  Everts  v.  Agnes,  5  Wis.  343;  Farmers'  Loan  &  Trust 
Co.  v.  Mnltby,  8  Paige  (N.  Y.)  361. 
EATON.EQ.— 11 


162  BONA    FIDE    PURCHASERS   WITHOUT   NOTICE.  (Ch.  6 

adverse  claim,  it  will  not  be  deemed  a  valuable  consideration 
for  the  sake  of  rendering  the  party  a  bona  fide  purchaser.1* 

Absence  of  Notice* 

The  question  as  to  what  constitutes  notice  has  already 
been  discussed.  It  is  settled  that  one  who  pays  the  purchase 
money  with  notice,  in  any  of  its  various  forms,  either  actual 
or  constructive,  of  adverse  rights  in  the  property  purchased, 
takes  subject  to  those  rights,  and  will  not  be  protected.15 

The  weight  of  authority  is  that  a  grantee  in  a  quitclaim 
deed  which  conveys  only  "the  right,  title,  and  interest  of  the 
grantor"  is  not  a  bona  fide  purchaser,  because  the  deed 
itself  is  notice  that  he  is  getting  only  a  doubtful  title.16  But 
there  are  a  number  of  other  cases  holding  that  a  grantee  in 
a  quitclaim  deed,  who  in  good  faith  parts  with  a  valuable 
consideration,  is  entitled  to  protection,  as  a  bona  fide  pur- 
chaser, equally  with  a  grantee  in  a  deed  containing  covenants 
warranting  the  title.17 

A  bona  fide  purchaser  is  not  only  entitled  to  protection  for 
his  title  while  it  remains  in  him,  but  he  may  also  transfer 
such  title  to  any  other  person,  and  with  it  goes  his  superior 
equity  as  a  bona  fide  purchaser.  And,  although  the  grantee 
of  a  bona  fide  purchaser  may  have  notice  of  outstanding 
conflicting  interests  which  are  a  defect  upon  the  title,  he  may 

n  Roseman  v.  Miller,  84  111.  297;  Dickerson  v.  Tlllinghast,  4 
Paige  <X.  Y.)  215,  25  Am.  Dec.  528;  Ells  v.  Tousley,  1  Paige  (X.  Y.) 
280;  Whittick  v.  Kane,  Id.  200,  208;  Jewett  v.  Paluier,  7  Johns.  Ch. 
(N.  Y.)  65,  68,  11  Am.  Dec.  401;  Weaver  v.  Barden,  40  X.  Y.  286; 
De  Lancey  v.  Stearns,  66  N.  Y.  157;  Beck  v.  Uhrich,  13  Pa,  636; 
Storrs  v.  Wallace,  61  Mich.  437,  28  X.  W.  662. 

IB  i  Story,  Eq.  Jur.  §  395;  Murray  v.  Ballou,  1  Johns.  Ch.  (N.  Y.) 
666. 

i«  Martin  v.  Morris,  62  Wls.  418,  22  N.  W.  525;  Thorn  v.  Newson, 
64  Tex.  161,  53  Am.  Rep.  747;  Dodge  v.  Briggs  (C.  C.)  27  Fed.  160; 
Peters  v.  Cartler,  80  Mich.  124,  45  N.  W.  73,  20  Am.  St  Rep.  508; 
Richardson  v.  Levi,  67  Tex.  359,  3  S.  W.  444;  Johnson  v.  Williams, 
87  Kan.  179.  14  Pac.  537,  1  Am.  St.  Rep.  243;  Dickerson  v.  Colgrove, 
100  U.  S.  578,  584,  25  L.  Ed.  618;  Baker  v.  Humphrey,  101  U.  S. 
494.  499.  25  L.  Ed.  1065. 

"  Xidever  v.  Ayers,  83  Cal.  39,  23  Pac.  192;  Fox  v.  Hall,  74  Mo. 
815,  41  Am.  Rep.  316;  Chapman  v.  Sims,  53  Miss.  154.  In  recent 
CMM  questioning  prior  decisions,  the  United  States  supreme  court 
lays  down  the  proposition  that  the  grantee  in  a  quitclaim  deed 
may  be  a  boua  fide  purchaser.  Moelle  v.  Sherwood.  148  U.  S.  21, 
13  Sup.  Ct.  426,  37  L.  Ed.  350;  U.  S.  v.  Laud  Co.,  148  U.  S.  31,  13 
Sup.  Ct  458,  37  L.  Ed.  354. 


§   58)          WHAT    CONSTITUTES    A    BONA    FIDE    PURCHASE.  163 

still  claim  the  benefit  of  the  superior  equity  acquired  by  his 
grantor  as  a  bona  fide  purchaser.18  But  this  rule  is  sub- 
ject to  the  exception  that  a  bona  fide  purchaser  cannot  re- 
convey  the  title,  free  from  prior  equities,  to  a  former  owner, 
who  was  charged  with  notice  of  such  equities.18  If  the  title 
to  real  estate  passes  through  the  hands  of  successive 
grantees,  all  with  notice  of  prior  equities,  and  finally  comes 
to  a  bona  fide  purchaser  without  notice  of  such  equities,  it 
is  immediately  freed  from  such  equities,  and  such  purchaser 
obtains  a  valid  title,20  subject  to  the  exception  above  stated. 

Presence  of  Good  Faith. 

The  maxim  that  "he  who  comes  into  equity  must  come 
with  clean  hands"  is  peculiarly  applicable  to  one  claiming  to 
be  a  bona  fide  purchaser.21  Not  only  must  there  be  a 
valuable  consideration,  and  lack  of  notice  of  prior  equities, 
but  the  purchaser  must  have  entered  into  the  transaction  in 
good  faith.  He  must  be  guiltless  of  fraud,  and  free  from  the 
taint  of  unconscionable  conduct.  If  he  be  a  party  to  an  in- 
tended fraud  against  the  vendor's  or  grantor's  creditors ;  if 
he  obtains  his  title  through  misrepresentations  or  conceal- 
ments which  are  inequitable,  although  not  amounting  to 
actual  fraud, — he  cannot  maintain  his  character  as  a  bona 
fide  purchaser.22 

Good  faith  has  been  declared  to  consist  in  an  honest  inten- 
tion to  abstain  from  taking  any  unconscientious  advantage 

i«  Pringle  v.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772;  Trull  v.  Big- 
elow,  16  Mass.  40G;  Mott  v.  Clark,  9  Pa.  399;  Craig  v.  Zimmerman, 
87  Mo.  478,  56  Am.  Rep.  466;  Hayes  v.  Nourse,  114  N.  Y.  606,  22 
N.  E.  40,  11  Am.  St.  Rep.  700;  Scotland  Co.  v.  Hill,  132  U.  S.  107,  10 
Sup.  Ct.  26,  33  L.  Ed.  261. 

i»  Bumpus  v.  Platner,  1  Johns.  Ch.  (N.  Y.)  213,  219;  Schutt  v. 
Large,  6  Barb.  (N.'Y.)  373;  Church  v.  Rutland,  64  Pa.  432;  Ashton's 
Appeal,  73  Pa.  153;  Clark  v.  McNeal,  114  N.  Y.  295,  21  N.  E.  405; 
Johnson  v.  Gibson,  116  111.  294,  6  N.  E.  205;  Trentrnan  v.  Eldridge, 
98  Ind.  525;  Brown  v.  Cody,  115  Ind.  488,  18  N.  E.  9. 

20  1  Story,  Eq.  Jur.  §  409;    Odom  v.  Riddick,  104  N.  C.  515,  10 
8.  E.  609,  7  L.  R.  A.  118,  17  Am.  St.  Rep.  686;   Zoeller  v.  Riley,  100 
N.  Y.  108,  2  N.  E.  388;    Valentine  v.  Lunt,  115  N.  Y.  496,  503,  22 
N.  E.  209;    Somes  v.  Brewer,  2  Pick.  (Mass.)  183,  13  Am.  Dec.  406; 
Latham  v.  Inman,  88  Ga.  505,  15  S.  E.  8;    Paris  v.  Lewis,  85  I1L 
597;    Fish  v.  Benson,  71  Cal.  429,  12  Pac.  454;    Hewlett  Y.  Pilcher, 
85  Cal.  542,  24  Pac.  781. 

21  Cram  v.  Mitchell.  1  Sandf.  Ch.  (N.  Y.)  251. 
"  Pom.  Eq.  Jur.  §  762, 


Kit  BONA    FIDE    PURCHASERS    WITHOUT    NOTICE.  (Ch.   (> 

of  another,  even  through  the  forms  or  technicalities  of  law, 
together  with  an  absence  of  knowledge  of  facts  which  would 
render  the  transaction  unconscientious.28  We  have  already 
seen  that  gross  inadequacy  of  consideration  may  be  evidence 
of  fraud,  and  it  has  also  been  held  that  a  mortgagee  cannot 
be  considered  a  bor.a  fide  purchaser  where  there  is  usury 
in  the  debt  secured.84 

»B  Gress  v.  Evans,  1  Dak.  387,  46  N.  W.  1132. 

*<  Smith  v.  Lehman,  Durr  &  Co.,  85  Ala.  304,  5  South.  204.  Where 
a  land  grant  by  the  federal  government  is  made  on  condition  that  a 
certain  road  be  completed  by  the  grantees,  purchasers  from  the 
grantees  are  uot  chargeable  with  bad  faith  because  they  fail  to 
make  a  personal  examination  of  the  road  to  ascertain  whether  It  Is 
completed,  when  the  governor  of  the  state,  to  whose  determina- 
tion the  matter  had  been  committed  by  statute,  certifies  that  the 
road  is  completed.  United  States  v.  Land  Co.,  148  U.  S.  31,  13  Sup. 
Ct.  458,  37  L.  Ed.  354.  Other  recent  cases  involving  the  question 
of  good  faith  are  Billings  v.  Smelting  Co.,  2  O.  C.  A.  252,  51  Fed. 
838;  Tarklngton  v.  Purvis,  128  Ind.  182,  25  N.  B.  879,  9  L.  R.  A. 
007;  Barrett  v.  Sear,  128  Ind.  261,  27  N.  E.  607. 


§   59)  EQUITABLE    ESTOPPEL.  165 

CHAPTER  VII. 

EQUITABLE  ESTOPPEL, 

69.  Definition. 

60.  Fraud  as  a  Basis  of  Equitable  Estoppel. 

61.  Essential  Elements. 

62.  Operation  of  Estoppel. 

63.  In  Whose  Favor  Estoppel  Does  Not  Operate. 

DEFINITION. 

69.  Equitable  estoppel  consists  in  this:  When  one, 
by  his  words  or  conduct,  voluntarily  causes 
another  to  believe  the  existence  of  a  certain 
state  of  things,  and  induces  him  to  act  in  that 
belief,  so  as  to  alter  his  own  previous  posi- 
tion, the  former  is  precluded  from  asserting, 
as  against  the  latter,  a  different  state  of  things 
as  existing  at  the  same  time.1 

I  59.  i  Pickard  v.  Sears,  6  Adol.  &  E.  469;  Freeman  y.  Oooke,  2 
Exch.  654;  Dyer  v.  Cady,  20  Conn.  263;  Shapley  v.  Abbott,  42  N.  Y. 
448, 1  Am.  Rep.  548.  "Where  one  voluntarily,  by  acts  or  declarations, 
represents  a  certain  state  of  facts  to  exist,  and  thereby  procures 
a  change  of  conduct  in  another,  he  cannot  afterwards  be  heard  to 
assert  a  contrary  state  of  facts,  if  injury  results  to,  or  fraud  is  per- 
petrated thereby  upon,  the  party  who  has  acted  relying  upon  the 
truth  of  his  representations."  Gillett  v.  Wiley,  126  111.  310,  323,  19 
N.  E.  287,  9  Am.  St  Rep.  587.  "Equitable  estoppel  is  the  effect  of 
the  voluntary  conduct  of  a  party  whereby  he  is  absolutely  pre- 
cluded, both  at  law  and  in  equity,  from  asserting  rights  which 
might,  perhaps,  have  otherwise  existed,  either  of  property,  of  con- 
tract, or  of  remedy,  as  against  another  person,  who  has  in  good 
faith  relied  upon  such  conduct,  and  has  been  led  thereby  to  change 
his  position  for  the  worse,  and  who  on  his  part  acquires  some  cor- 
responding right,  either  of  property,  of  contract,  or  of  remedy." 
Pom.  Eq.  Jur.  §  804.  "Equitable  estoppel  consists  in  this:  When- 
ever, by  his  conduct  or  declarations,  one  had  induced  another  to  act 
upon  the  belief  in  certain  facts,  he  shall  not  thereafter  deny  the 
truth  of  such  facts  to  the  prejudice  of  the  other."  Merwin,  Eq. 
PI.  §  910.  The  definition  in  the  text  was  derived  from  that  in  the 
case  of  Pickard  v.  Sears,  supra,  except  that  the  word  "voluntarily" 
is  inserted  for  "willfully."  In  the  case  of  Cornish  v.  Abington,  4 


166  EQUITABLE    ESTOPPEL.  (Ch.  7 

The  doctrine  of  estoppel  was  recognized  by  the  common 
law  at  an  early  day.2  Lord  Coke,  in  stating  the  doctrine  of 
the  common  law,  said :  "An  estoppel  is  where  a  man  is  con- 
cluded by  his  own  act  or  acceptance  to  say  the  truth,"  and, 
in  classifying  the  subject,  he  added:  "Touching  estoppels, 
which  are  a  curious  and  excellent  sort  of  learning,  it  is  to  be 
observed  that  there  are  three  kinds  of  estoppels,  viz.  by  mat- 
ter of  record,  by  matter  in  writing,  and  by  matter  in  pais." 
The  instances  which  he  gave  of  estoppel  in  pais  were :  "By 
matter  in  pais, — as  by  livery,  by  entry,  and  by  acceptance  of 
an  estate."8  All  of  these  are  instances  of  legal  estoppel,  and 
are  not  to  be  considered  in  a  discussion  of  equitable  estoppel. 
While  equitable  estoppels  arise  from  facts  which  are  all  mat- 
ters in  pais,  there  is  an  essential  and  marked  distinction  be- 
tween them  and  legal  estoppels  in  pais.  The  equitable  estop- 
pel and  legal  estoppel  in  pais  agree,  however,  in  that  they 
both  preclude  a  person  from  showing  the  truth  in  an  indi- 
vidual case.  But  the  legal  estoppel  shuts  out  the  truth,  and 
also  the  equity  and  justice  of  the  individual  case,  on  account 

Hurl.  &  N.  549,  It  was  said  that  the  word  "-willfully,"  as  so  used, 
meant  "voluntarily."  Sir  James  Fitzjames  Stephen,  In  his  Digest 
of  the  Laws  of  Evidence  (page  124),  says:  "When  one  person,  by 
anything  which  he  does  or  says,  or  abstains  from  doing  or  saying, 
Intentionally  causes  or  permits  another  person  to  believe  a  thing  to 
be  true,  and  to  act  upon  such  belief  otherwise  than,  but  for  that 
belief,  he  would  have  acted,  neither  the  person  first  mentioned  nor 
his  representative  In  Interest  Is  allowed  In  any  suit  or  proceeding 
between  himself  and  such  person  or  his  representative  In  Interest 
to  deny  the  truth  of  that  thing.  When  any  person  under  a  Ic^al 
duty  to  any  other  person  to  conduct  himself  with  reasonable  cau- 
tion In  the  transaction  of  any  business  neglects  that  duty,  and 
when  the  person  to  whom  the  duty  Is  owing  alters  his  position  for 
the  worse,  because  he  Is  misled  as  to  the  conduct  of  the  negligent 
person  by  a  fraud,  of  which  such  neglect  is,  In  the  natural  course 
of  things,  the  proximate  cause,  the  negligent  person  is  not  per- 
mitted to  deny  that  be  acted  in  the  manner  in  which  the  other  per- 
son was  led  by  such  fraud  to  believe  him  to  act." 

a  In  Keate  v.  Phillips,  18  Ch.  Dlv.  660,  577,  Vice  Chancellor  Bacon 
•aid:  'The  common-law  doctrine  of  estoppel  was,  as  I  have  said, 
a  device  which  the  common-law  courts  resorted  to  at  a  very  early 
period  to  strengthen  and  lengthen  their  arm,  and,  not  venturing  to 
exercise  an  equitable  Jurisdiction  over  the  subject  before  them, 
they  did  convert  their  own  special  pleading  tactics  Into  an  Instru- 
ment by  which  they  could  obtain  an  end  which  the  court  of  chan- 
cery, without  any  foreign  assistance,  did  at  all  times,  and  I  hope 
.will  at  all  times,  put  In  force  In  order  to  do  justice." 

•  Co.  Litt.  352  (a). 


§   59)  DEFINITION.  167 

of  the  supposed  paramount  importance  of  rigorously  enforc- 
ing a  certain  and  unvarying  maxim  of  the  law.  It  excludes 
evidence  of  the  truth,  and  the  equity  of  the  particular  case 
to  support  a  strict  rule  of  law  on  grounds  of  public  policy. 
Equitable  estoppels  are  admitted  on  the  exactly  opposite 
ground  of  promoting  the  equity  and  justice  of  the  individual 
case  by  preventing  a  party  from  asserting  his  rights  under 
a  general  technical  rule  of  law,  when  he  has  so  conducted 
himself  that  it  would  be  contrary  to  equity  and  good  con- 
science for  him  to  allege  and  prove  the  truth.*  Equitable 
estoppels  are  only  called  into  being  to  redress  an  injury  or  to 
prevent  a  wrong,  and  will  not  be  extended  further  than  nec- 
essary to  accomplish  the  purposes  for  which  they  were  cre- 
ated. But  legal  estoppels  take  effect  in  all  cases,  when  once 
called  into  being,  without  regard  to  consequences,  and  pro- 
duce an  inflexible  barrier  which  will  not  yield  to  circum- 
stances.5 

The  equitable  doctrine  of  estoppel  had  its  origin  in  courts 
of  equity;  but  it  is  now  generally  available  in  courts  of  law,8 
although  it  has  been  frequently  held  that  an  equitable  estop- 
pel in  pais  will  not  be  available  as  a  defense  in  the  common- 
law  action  of  ejectment.7  The  doctrine  rests  on  the  broad 
ground  of  public  policy  and  good  faith,  and  is  interposed  to 
guard  against  fraud  and  prevent  injustice.8  The  vital  princi- 
ple of  the  doctrine  is  that  he,  who,  by  his  language  or  con- 
duct, leads  another  to  do  what  he  would  not  otherwise  have 
done,  shall  not  subject  such  person  to  loss  or  injury  by  disap- 

*  Horn  v.  Cole,  51  N.  H.  287,  289,  12  Am.  Rep.  Ill,  per  Perley, 
C.  J.     And  see,  also,  Stevens  v.  Dennett,  51  N.  H.  324. 

»  McAfferty  v.  Conover's  Lessee,  7  Ohio  St.  99,  70  Am.  Dec.  57. 

•  Dickerson  v.  Oolgrove,  100  U.  S.  578,  25  L.  Ed.  618. 

»  Delaplaine  v.  Hltchock,  6  Hill  (N.  Y.)  14;  Hamlin  v.  Hamlln, 
19  Me.  141;  Hayes  v.  Livingston,  34  Mich.  284,  22  Am.  Rep.  533;  De 
Mill  v.  Moffatt,  49  Mich.  125,  13  N.  W.  387;  St.  Louis  Nat.  Stock 
Yards  v.  Ferry  Co.,  102  111.  514;  Towiisend  Sav.  Bank  v.  Todd,  47 
Conn.  190. 

s  Shipley  y.  Fox,  69  Md.  572,  579,  16  Atl.  275.  In  the  case  of 
Horn  v.  Cole,  51  N.  H.  287,  12  Am.  Rep.  Ill,  it  was  said,  among 
other  things:  "It  thus  appears  that  what  has  sometimes  been 
called  an  equitable  estoppel,  and  sometimes  with  less  propriety  an 
estoppel  in  pais,  is  properly  and  peculiarly  a  doctrine  of  equity, 
originally  Introduced  there  to  prevent  a  party  from  taking  a  dis- 
honest and  unconscientious  advantage  of  his  strict  legal  rights, 
though  now  with  us,  like  many  other  doctrines  of  equity  habitually 
administered  at  law." 


168  EQUITABLE    ESTOPPEL.  (Ch.  7 

pointing  the  expectations  upon  which  he  acted.  Such  a 
change  of  position  is  strictly  forbidden.  It  involves  fraud 
and  falsehood,  and  the  law  abhors  both.  The  remedy  is  to 
be  applied  to  promote  the  ends  of  justice,  is  available  only 
for  protection,  and  cannot  be  used  as  a  weapon  of  assault.8 


FEAUD  AS  A  BASIS  OF  EQUITABLE  ESTOPPEL. 

60.  Fraud,  when  used  in  the  general  sense  of  what 
is  "inequitable"  or  "  unconscientious  "  is  es- 
sential, either  in  the  intention  of  the  party 
estopped  or  in  the  effect  of  the  evidence  which 
he  sets  up.1 

This  proposition  is  not  intended  to  convey  the  impression 
that,  to  admit  of  the  possibility  of  an  equitable  estoppel,  the 
party  estopped  must  have  been  guilty  of  actual  and  inten- 
tional fraud.  It  is  not  necessary  to  an  equitable  estoppel 
that  the  party  should  design  to  mislead.3  It  would  limit  the 
rule  much  within  the  reason  of  it  if  it  were  restricted  to  cases 
where  there  was  an  element  of  fraudulent  purpose.  In  very 
many  of  the  cases  mere  negligence  on  the  part  of  the  person 
estopped  has  been  deemed  sufficient  for  an  application  of  the 
doctrine.* 

Fraud,  as  an  essential  element  in  equitable  estoppel,  may 
exist  not  only  in  the  conduct  of  the  party  which  has  caused 
the  estoppel,  but  also  in  the  effort  of  the  party  'to  assert 
claims  inconsistent  with  such  former  conduct.  Although 
fraud  is  often  an  ingredient  in  the  conduct  of  the  party 

•  Dickerson  v.  Colgrove,  100  U.  S.  578,  580,  25  L.  Ed.  618.     "Its 
object  is  to  prevent  the  unconscientious  and  inequitable  assertion 
or  enforcement  of  claims  or  rights  which  might  have  existed  or 
been  enforceable  by  other  rules  of  law  unless  prevented  by  the 
estoppel;  and  its  practical  effect  is,  from  motives  of  equity  and  fair 
dealing,  to  create  and  vest  opposing  rights  In  the  party  who  ob- 
tains the  benefit  of  the  estoppel."     Pom.  Eq.  Jur.  §  802. 

i  60.     i  Brant  v.  Iron  Co.,  93  U.  S.  326,  335,  23  L.  Ed.  927. 

»  Trustees,  etc.,  of  Town  of  Brookhaven  v.  Smith,  118  N.  Y.  634, 
23  N.  E.  1002;  Blair  v.  Wait,  69  N.  Y.  113,  116;  Galbraith  v.  Luns- 
ford,  87  Tenn.  89,  9  S.  W.  ;HM.  1  L.  R.  A.  522;  Gillett  v.  Wiley,  126 
111.  310,  323,  19  N.  E.  287;  Anderson  v.  Hubble,  93  Ind.  570,  47  Am. 
Bep.  394. 

•  Continental  Nat  Bank  y.  Bank,  50  N.  Y.  578. 


§    61)  ESSENTIAL    ELEMENTS.  169 

estopped,  it  is  not  an  essential  element,  if  the  word  is  used  in 
its  commonly  accepted  sense;  and  the  use  of  the  term  is 
unnecessary,  and  often  improper,  unless  applied  to  the  effort 
of  the  party  estopped  to  repudiate  his  conduct,  and  to  assert 
a  right  or  claim  inconsistent  therewith.* 


ESSENTIAL  ELEMENTS. 

61.  The   elements   essential  to   create  an  equitable 
estoppel  are: 

(a)  Words  or  conduct  by  the  party  against  whom 

the  estoppel  is  alleged,  amounting  to  a  mis- 
representation or  concealment  of  material 
facts. 

(b)  The  party  against  -whom  the  estoppel  is  al- 

leged must  have  knowledge,  either  actual  or 
implied,  at  the  time  the  representations  were 
made,  that  they  were  untrue. 

(c)  The  truth  respecting  the    representations  so 

made  must  be  unknown  to  the  party  claim- 
ing the  benefit  of  the  estoppel  at  the  time 
they  were  made  and  at  the  time  they  were 
acted  on  by  him. 

(d)  The  party   estopped  must  intend    or  expect 

that  his  conduct  or  representations  will  be 
acted  on  by  the  party  asserting  the  estoppel, 
or  by  the  public  generally. 

(e)  The    representations   or   conduct   must    have 

been  relied  and  acted  on  by  the  party  claim- 
ing the  benefit  of  the  estoppel. 

(f)  The  party  claiming  the  benefit  of  the  estoppel 

must  have  so  acted,  because  of  such  repre- 
sentations or  conduct,  that  he  would  be  prej- 
udiced if  the  first  party  be  permitted  to  deny 
the  truth  thereof. 

«  Galbraitli  v.  Lunsford,  87  Term.  89,  9  S.  W.  365,  1  L,  K,  A.  522. 


170  EQUITABLE    ESTOPPEL.  (Ch.  7 

Conduct  and  Representations. 

The  words  relied  on  to  effect  an  estoppel  may  be  either 
written  or  spoken ;  and  misleading  silence,  where  there  is  a 
duty  to  speak,  is  as  effectual  to  create  an  estoppel  as  a  di- 
rect representation.  Silence  of  a  party  having  full  knowl- 
edge of  his  own  rights,  so  as  to  intentionally  permit  others  to 
be  deceived  and  misled  in  relation  to  them,  will  preclude  him 
from  afterwards  interposing  his  claim  to  the  prejudice  of 
the  party  thus  deceived  or  misled.1  But  silence  can  never 
create  an  estoppel  unless  there  is  a  duty  to  speak.1  It  is 
a  general  principle  that,  when  one  knowingly  suffers  another 
in  his  presence  to  purchase  property  to  which  he.  has  a  claim 
of  title,  which  he  willfully  conceals,  he  will  be  deemed  to 
have  waived  his  claim,  and  he  will  not,  thereafter,  be  permit- 
ted to  assert  it  against  the  purchaser.3  But,  where  the  pub- 
lic records  would  disclose  the  rights  of  a  party  in  a  piece  of 
land,  a  purchaser  thereof  cannot  assert  against  such  party  an 
estoppel  founded  on  his  silence  and  acquiescence.4  But  in 
a  recent  New  York  case  it  has  been  held  that,  where  the 
party  to  be  estopped  has  made  representations  in  hostility 
to  his  record  title,  he  will  not  be  permitted  to  deny  the  truth 
of  such  representations  if  the  consequences  would  be  to 
work  an  injury  to  a  third  person,  or  a  person  claiming  under 
him.5  A  similar  principle  is  applied  where  a  person  denies 
his  own  title  or  incumbrance  when  inquired  of  by  a  person 
who  is  about  to  purchase  the  land,  or  loan  money  upon  its 
security;  or  where  a  person  knowingly  suffers  another  to 
expend  money  in  improvements  on  land  without  disclosing 

f  61.  i  Titus  v.  Morse,  40  Me.  348,  63  Am.  Dec.  665;  Phillips  v. 
Clark,  4  Mete.  (Ky.)  348,  83  Am.  Dec.  471;  Cowley  v.  City  of  Spokane 
(C.  C.)  99  Fed.  840. 

2  New  York  Rubber  Co.  v.  Rothery,  107  N.  T.  310,  14  N.  E.  269, 
1  Am.  St.  Rep.  822. 

»  Lindsay  v.  Cooper,  94  Ala.  170,  11  South.  323,  16  L.  R.  A.  813, 
83  Am.  St.  Rep.  105;  Dewey  v.  Field,  4  Mete.  (Mass.)  381,  38  Am. 
Dec.  376;  Stephens  v.  Baird,  9  Cow.  (N.  Y.)  274;  Favill  v.  Roberts, 
60  N.  Y.  222;  Greene  v.  Smith,  57  Vt.  268;  Fielding  v.  Du  Rose,  63 
Tex.  631;  Wells  v.  Pierce,  27  N.  H.  503;  Raley  v.  Williams,  73  Mo. 
810;  Bullis  v.  Noble,  36  Iowa,  618;  Workman  v.  Guthrie,  29  Pa.  495. 
72  Am.  Dec.  654;  Peters  v.  Canfleld,  74  Mich.  498,  42  N.  W.  125. 

«  Thor  v.  Oleson,  125  111.  365,  17  N.  E.  780. 

»  Mattes  v.  Fraukel,  157  N.  Y.  603,  609,  52  N.  E.  585,  68  Am.  St 
Bep.  804, 


§    61)  ESSENTIAL    ELEMENTS.  171 

his  claim  or  interest  therein.6  This  rule  is  not  to  be  applied 
unless  the  legal  owner  of  the  land  is  guilty  of  actual  fraud, 
"or  fault  or  negligence  equivalent  to  fraud,  on  his  part,  in 
concealing  his  title,"  or  unless  he  was  silent  when  the  circum- 
stances would  impel  an  honest  man  to  speak.7  The  repre- 
sentations must  be  certain,  and  of  a  material  character,  and 
such  as  would  naturally  lead  an  ordinarily  prudent  man  to 
act  thereon.8  They  must  relate  to  the  existence  of  some  past 
or  present  fact.  Anything  stated  with  respect  to  the  future 
must  constitute  a  mere  expression  of  opinion,  or  a  promise 
to  do  or  not  to  do  something  in  the  future.  In  either  event, 
the  party  making  the  representations  is  not  estopped  by 
them,  or  bound  with  respect  to  his  future  conduct,  unless 
they  are  such,  in  form  and  substance,  that  they  must  be 
deemed  to  have  become  part  of  a  valid  contract.8  Nor  does 
the  assertion  of  a  legal  conclusion,  where  the  facts  were  all 
stated,  operate  as  an  estoppel  on  the  party  making  such 
assertion.10  And  if  the  misrepresentation  is  made  through 
mistake,  or  induced  by  the  fraud  of  the  person  to  whom  it 
is  made,  it  does  not  create  an  estoppel.11 

«  Pom.  Eq.  Jur.  £  807. 

i  Chapman  v.  Chapman,  59  Pa.  214,  where  the  court  said:  "Sil- 
ence will  postpone  a  title  when  one  should  speak  out,  when,  know- 
ing his  own  right,  one  suffers  his  silence  to  lull  to  rest,  instead  of 
warning  to  danger;  when,  to  use  the  language  of  the  books,  'silence 
becomes  a  fraud.'  Such  a  silence,  though  negative  in  form,  is  op- 
erative in  effect,  and  becomes  suggestive  in  the  seeming  security 
it  leads  to.  He  who  is  led  by  such  silence  ignorantly  or  innocently 
to  rest  upon  his  title  believing  it  to  be  secure,  and  to  expend  money 
and  make  improvements  on  his  property,  without  the  timely  warn- 
ing he  should  have  had  to  dispel  his  illusion,  will  be  protected  by 
estoppel  against  recovery." 

s  Blodgett  v.  Perry,  97  Mo.  263,  273,  10  S.  W.  891;  Howe  Mach.  Co. 
v.  FarringtonT  82  N.  Y.  121;  The  Belle  of  the  Sea,  20  Wall.  429,  22 
L.  Ed.  362. 

»  Turnipseed  v.  Hudson,  50  Miss.  429,  19  Am.  Rep.  15;  Langdon  v. 
Doua.  10  Allen  (Mass.)  433;  Bigelow,  Estop,  p.  486;  Jackson  v.  Allen, 
120  Mass.  79;  White  v.  Ashton,  51  N.  Y.  280;  Starry  v.  Korab,  65 
Iowa.  267,  21  N.  W.  600. . 

10  Chatfield  v.  Simonson,  92  N.  Y.  208,  218:  Whitwell  v.  Winslow, 
134  Mass.  346,  347;  Soward  v.  Johnston,  65  Mo.  102. 

11  Lyndon  ville  Nat  Bank  v.  Fletcher,  68  Vt  81,  34  Atl.  38,  54  Am 
St  Rep.  874. 


172  EQUITABLE    EsTOl'l'EL.  (Cll.  7 

Knowledge  Jy  Party  Estopped. 

If  one  knowingly  makes  a  false  representation  in  reference 
to  a  material  matter,  the  case  is  clear.  If  he  recklessly  makes 
a  representation  without  knowing  whether  it  be  true  or  false, 
he  is  equally  bound  by  it;  for  the  affirmation  of  what  one 
does  not  know  or  believe  to  be  true  is  equally,  in  morals  and 
in  law,  as  unjustifiable  as  the  affirmation  of  what  is  known  to 
be  positively  false.12  But,  if  he  has  reasonable  grounds  for 
believing  that  the  statements  made  by  him  were  true,  there 
can  be  no  estoppel  against  him.18  But  a  misrepresentation, 
innocently  made,  and  with  a  belief  in  its  truth,  may  work  an 
estoppel  where  the  party  making  it  was  in  a  position  in  which 
he  ought  to  have  known  the  actual  facts.14 

Ignorance  of  Facts  by  Party  Claiming  Benefit  of  Estoppel. 
Where  the  party  to  whom  the  representations  are  made 
has  full  knowledge  of  the  facts,  either  at  the  time  they  were 
made  or  when  he  acted  upon  them,  he  cannot  claim  an  estop- 
pel.15 There  can  be  no  fraud  when  both  parties  to  the 
transaction  are  equally  informed  of  all  the  facts,  and  mutually 
assent  to  them.18  If  the  representations  are  known  by  the 
party  to  whom  they  were  made  to  be  untrue,  it  cannot  be 
said  that  he  was  induced  to  act  because  of  such  representa- 
tions. Knowing  them  to  be  false,  he  could  not  have  been  in- 
fluenced thereby  to  his  detriment.  Nor  can  he  claim  to  have 
been  misled  by  the  false  representations  or  concealment  of 
facts  by  the  party  sought  to  be  estopped,  if  he  could  have 
ascertained  the  truth  by  prosecuting  an  inquiry  with  due 
diligence.17  It  is  negligence  for  a  person  to  blindly  follow 


»*  Story,  Eq.  Jur.  §  193;  Preston  v.  Mann,  25  Conn.  118,  129. 

is  Proctor  v.  Machine  Co.,  137  Mass.  159;  Wright's  Appeal,  99 
Pa.  425;  Fay  v.  Tower,  58  Wis.  285,  16  N.  W.  558;  Gray  v.  Agnew, 
95  111.  315;  Watters  v.  Connelly,  59  Iowa,  217,  13  N.  W.  82;  Van 
Ness  v.  Hadsell,  54  Mich.  5CO,  20  N.  W.  585. 

»«  Irving  Nat.  Bank  v.  Alley,  79  N.  Y.  536,  540;  Horn  v.  Cole,  51 
N.  H.  287,  12  Am.  Rep.  111. 

«  Robbing  v.  Potter,  98  Mass.  532;  Buck  v.  Mllford,  90  Ind.  291, 
293;  Steel  v.  Refining  Co.,  106  U.  S.  447,  1  Sup.  Ct  389,  27  L.  Ed. 
226;  Baker  v.  Insurance  Co..  43  N.  Y.  283,  289;  Western  Land  Ass'n 
T.  Banks,  80  Minn.  317,  83  N.  W.  192. 

»•  Hapalee  v.  Stewart,  27  N.  Y.  310;  Richards  v.  Railroad  Co.,  137 
Pa.  531,  19  Atl.  931;  Whitney  v.  Holmes,  15  Mass.  152;  Stanton  v. 
Manufacturing  Co.,  90  Mich.  12,  51  N.  W.  101. 

11  Steel  v.  Refining  Co.,  100  U.  S.  447,  1  Sup.  Ct  389,  27  L,  Ed. 


§    Gi)  ESSENTIAL    ELEMENTS.  173 

the  representations  of  another  with  whom  he  may  be  dealing, 
or  to  rest  supinely  under  a  concealment  of  material  facts, 
when  the  truth  can  be  readily  ascertained.  This  rule  has 
been  frequently  applied  where  an  investigation  of  the  records 
would  disprove  false  statements,  or  disclose  concealed  facts, 
— as  in  the  case  of  alleged  estoppel  by  conduct  affecting 
the  title  to  land,  where  it  has  been  held  that,  since,  by  an  in- 
vestigation of  the  record  the  true  facts  might  be  ascertained, 
a  party  cannot  claim  to  have  been  misled  and  he  cannot  avail 
himself  of  the  doctrine  of  estoppel.18  This  application  of 
the  rule  is  of  doubtful  force,  and,  if  applied  at  all,  it  must  be 
only  in  the  case  of  concealment  of  material  facts.  A  recent 
New  York  case  is  to  the  effect  that  a  person  making  repre- 
sentations in  hostility  to  his  recorded  title  will  not  be  permit- 
ted to  deny  the  truth  of  those  representations,  and  the  weight 
of  authority  in  other  states  is  in  support  of  this  view.19 

Intention  of  Party  Estopped. 

An  act  or  admission,  to  operate  as  an  estoppel,  must  have 
been  intended  to  influence  the  conduct  of  the  party  claim- 
ing the  benefit  of  the  estoppel.20  This  statement  of  the 
principle  is  somewhat  broad,  and  may  be  properly  subjected 
to  qualification.  It  is  not  necessary  to  an  equitable  estop- 
pel that  the  party  should  design  to  mislead.  If  his  act  was 
calculated  to  mislead,  and  actually  has  misled  another  acting 
upon  it  in  good  faith,  and  exercising  reasonable  care  and 
due  diligence  under  all  the  circumstances,  that  is  enough.21 
It  is  not  necessary,  in  equity,  that  the  intention  should  be  to 

226;  Bobbins  v.  Potter,  98  Mass.  532;  Odlin  v.  Gove,  41  N.  H.  465, 
77  Ain.  Dec.  773;  Lux  v.  Haggin,  69  Cal.  255,  266,  10  Pac.  674. 

is  Schaidt  v.  Blaul,  66  Md.  141,  6  Atl.  669;  Thor  v.  Oleson,  125  111. 
365,  17  N.  E.-780;  Hill  v.  Epley,  31  Pa.  331;  Goundie  v.  Northamp- 
ton Co.,  7  Pa.  233;  Fisher's  Ex'r  v.  Mossman,  11  Ohio  St.  42. 

i»  Mattes  v.  Frankel,  157  N.  Y.  603,  609,  52  N.  E.  585;  Storrs  v. 
Barker,  6  Johns.  Ch.  (N.  Y.)  166,  10  Am.  Dec.  316;  Davis  v.  Handy, 
37  N.  H.  65;  Colbert  v.  Daniel,  32  Ala.  314,  316;  David  v.  Park, 
103  Mass.  501;  Kiefer  v.  Rogers,  19  Minn.  32  (Gil.  14);  Peery  v. 
Hall,  75  Mo.  503;  Evans  v.  Forstall,  58  Miss.  30. 

20  Brown  v.  Bowen,  30  N.  Y.  519,  86  Am.  Dec.  406. 

21  Manufacturers'  &  Traders'  Bank  v.  Hazard,  30  N.  Y.  226,  230; 
Blair  v.  Wait,  69  N.  Y.  113,  116;  Standard  Paper  Co.  v.  Guenther,  67 
Wis.  106,  30  N.  W.  296;  Stevens  v.  Ludlum,  46  Minn.  160,  48  N.  W. 
771,  13  L.  R.  A.  270,  24  Am.  St.  Rep.  210;  Leather  Manufacturers' 
Nat.  Bank  v.  Morgan,  117  U.  S.  96,  6  Sup.  Ct.  657,  29  L.  Ed.  811. 


174  EQUITABLE  ESTOPPEL.  (Ch.  7 

deceive  any  particular  individual  or  individuals.  If  the  repre- 
sentations are  such,  and  made  in  such  circumstances,  that  all 
persons  interested  in  the  subject  have  the  right  to  rely  on 
them  as  true,  their  truth  cannot  be  denied  by  the  party  mak- 
ing them  against  any  one  who  has  trusted  and  acted  there- 
on.22 The  intention  to  induce  a  person  to  act  upon  the  rep- 
resentation or  conduct  of  another  is  to  be  inferred  from  such 
representation  and  conduct.  If  such  representation  or  con- 
duct is  in  fact  acted  upon  by  such  person,  and  is  of  such  a 
kind  that  a  reasonable  man  would  rely  upon  it,  and  would 
believe  that  it  was  meant  to  be  relied  upon,  there  is  an  estop- 
pel.28 

An  illustration  of  the  operation  of  this  principle  is  the 
estoppel  of  the  owner  of  a  chattel  from  asserting  title  thereto 
as  against  a  bona  fide  purchaser  from  one  whom  he  has 
clothed  with  the  apparent  title,  although  he  had  no  intention 
that  such  purchaser  should  act  on  such  appearance.24  If 
the  representation,  whether  by  words  or  conduct,  instead  of 
being  confined  to  a  particular  person,  or  to  a  particular  class 
of  persons,  was  actually  intended  to  be,  or  must  reasonably  be 
presumed  to  have  been,  intended  for  the  public  generally,  any 
person  who  acted  in  reliance  on  such  representation  may 
assert  the  estoppel.*"  In  the  case  of  a  dedication  of  land  for 
use  as  a  highway,  it  has  been  held  that  an  estoppel  in  pais 
is  created,  precluding  the  owner  from  asserting  any  right  in- 
consistent with  such  use ;  but  the  owner's  acts  and  declara- 
tions in  making  such  dedication  should  be  deliberate,  un- 
equivocal, and  decisive,  manifesting  a  positive  and  unmistak- 

»z  Horn  v.  Cole,  51  N.  H.  287,  12  Am.  Rep.  111.  And  see,  also, 
Cornish  v.  Abington,  4  Hurl.  &  N.  549,  where  it  Is  said:  "If  any 
person,  by  a  course  of  conduct,  or  by  actual  expressions,  so  con- 
ducts himself  that  another  may  reasonably  infer  the  existence  of 
an  agreement  or  license,  whether  the  party  Intends  that  he  should 
do  so  or  not,  it  has  the  effect  that  the  party  using  that  language, 
or  who  has  so  conducted  himself,  cannot  afterwards  gainsay  the 
reasonable  Inference  to  be  drawn  from  his  words  or  conduct."  And 
also,  to  the  same  effect,  Freeman  v.  Cooke,  2  Exch.  05-1;  Howard  v. 
Hudson,  2  El.  &  Bl.  1;  Moore  v.  Bank,  55  N.  T.  41,  14  Am.  Rep.  173; 
Combes  v.  Chandler,  83  Ohio  St  178. 

»»  Tracy  v.  Lincoln,  145  Mass.  353,  14  N.  E.  122;  Carr  v.  Railway 
Co.,  L.  R.  10  C.  P.  307. 

»<  McNeil  v.  Bank,  46  N.  T.  325,  7  Am.  Rep.  341;  Anderson  r. 
Armstend.  69  111.  452,  454;  Combes  v.  Chandler,  33  Ohio  St.  178. 

»•  McLean  v.  Dow,  42  Wla.  610. 


§    61)  ESSENTIAL   ELEMENTS.  175 

able  intention  to  permanently  abandon  his  property  for  the 
specific  public  use.86 

Conduct  or  Representations  must  le  Acted  en. 

The  conduct  or  representations  upon  which  an  estoppel  is 
based  must  have  induced  the  party  claiming  the  benefit  of 
such  estoppel  to  act  in  reliance  thereon.  The  declaration  on 
which  an  estoppel  is  asserted  must  have,  in  truth,  influenced 
the  conduct  of  him  who  sets  it  up,  so  that  he  will  be  prej- 
udiced if  the  party  making  it  is  allowed  to  retract.27  The 
act  must  have  been  an  immediate  and  proximate  result  of  the 
conduct  of  the  party  to  be  estopped.  "One  who  would 
profit  by  the  doctrine  of  equitable  estoppel  must  show  speedy 
faith  in  his  adversary,  and  not  a  halting  and  changing  be- 
lief. The  door  which  excludes  the  truth  cannot  be  open  and 
shut  at  his  pleasure.  His  first  acts  after  listening  to  the 
words  or  witnessing  the  conduct  of  his  adversary  in  regard 
to  the  matter  involved  is  the  test  of  his  belief  in  the  existence 
of  the  thing  represented,  and  indicates  that  belief;  for,  un- 
less he  is  induced  by  those  words  or  that  conduct  to  alter 
his  position,  his  adversary  cannot  be  concluded  from  aver- 
ring a  different  state  of  things.  The  effect  must  be  instan- 
taneous and  manifest  before  a  step  is  taken  in  opposition  to 
such  a  representation."  28  . 

It  is  not  indispensable  that  the  action  induced  by  such  con- 
duct or  representations  be  affirmative.  It  is  possible  that 
the  estoppel  may  be  occasioned  by  conduct  or  representa- 
tions which  induced  a  person  to  refrain  from  doing  what  he 
otherwise  would  have  done,  and  thereby  suffer  a  loss." 

a«  Holdane  v.  Trustees,  21  N.  Y.  474,  477. 

2*  Andrews  v.  Insurance  Co.,  85  N.  Y.  334,  344;  Waring  y.  Som- 
born,  82  N.  Y.  £04;  Van  Horn  v.  Overman,  75  Iowa,  421,  39  N.  W. 
679;  Conkey  v.  Hawthorne,  69  Wis.  199,  33  N.  W.  435;  Warder  v. 
Baldwin,  51  Wls.  450,  8  N.  W.  257;  Townseud  Sav.  Bank  v.  Todd, 
47  Conn.  190;  Tyler  v.  Association,  145  Mass.  134,  13  N.  E.  360; 
Butchers'  Slaughtering  &  Melting  Ass'n  v.  City  of  Boston,  139  Mass. 
290,  30  N.  E.  94;  Union  Mut.  Life  Ins.  Co.  v.  Slee,  123  111.  57,  12  N. 
E.  543;  McClure  v.  Livermore,  78  Me.  391,  6  Atl.  11. 

28  Andrews  v.  Insurance  Co.,  85  N.  Y.  334. 

«  Continental  Nat  Bank  v.  Bank,  50  N.  Y.  575,  586,  where  the 
court  says:  "And  such  quiescence  and  content,  Induced  by  false 
or  erroneous  statement,  may  be  quite  as  damaging  as  any  result 
from  action.  It  is  as  bad  to  fail  to  recover  property  gone,  when, 
with  the  knowledge  of  an  existing  fact,  it  might  have  been  re- 
trieved, as  it  Is  to  lose  it  And  so  it  Is  as  damaging  to  rely  in  quiet 


176  EQUITABLE  ESTOPPEL.  (Ch.  7 

Injury  must  be  Sustained  by  Conduct. 

There  can  be  no  estoppel  unless  the  person  to  whom  the 
representations  were  made  has  acted  thereon,  and  been  in- 
jured thereby.  If  such  person  has  so  changed  his  position 
that  he  will  be  injured  if  the  representations  be  withdrawn, 
or  the  conduct  repudiated,  he  may  assert  an  estoppel.30  And 
the  injury  must  be  the  proximate  result  of  the  conduct  de- 
pended upon  to  create  the  estoppel.81  To  raise  an  admission 
from  the  rank  of  evidence  to  that  of  an  estoppel,  it  must  not 
only  be  inconsistent  with  the  evidence  proposed  to  be  given 
in  a  subsequent  controversy,  but  must  have  so  influenced 
the  conduct  of  the  other  party  that  loss  or  injury  would  re- 
sult from  allowing  the  evidence  to  be  introduced.32  No  one 
can  be  estopped  from  alleging  the  truth,  unless  his  false  as- 
sertion or  equally  culpable  silence  has  been  the  inducement 
to  a  course  of  action  which  would  result  in  a  loss  if  he  were 
permitted  to  change  his  position  and  enforce  the  right  which 
he  has  thus  expressly  or  virtually  waived." 

OPERATION  OP  ESTOPPEL. 

62.  Estoppel  is  limited  to  the  representations  made, 
and  operates  to  place  the  person  entitled  to 
its  benefit  in  the  same  position  he  would 
have  been  in  had  the  representations  been 
true.1 

npon  an  untrue  statement,  to  the  neglect  of  using  the  means  of 
recovery,  as  It  is  to  rely  upon  an  untrue  statement,  and  by  action 
thereon  meet  with  loss  Irreparable.  To  hold  otherwise  would  be  to 
assert  that  the  law  makes  a  difference  between  damage  received 
by  action  and  omission  to  act,  in  circumstances  precisely  similar 
save  In  these  elements.  When  an  act  produces  conduct  from  which 
flows  Injury,  It  cannot  matter  whether  that  conduct  be  affirmative 
or  negative,  active  or  quiescent."  Weinstein  v.  Bank,  69  Tex.  38, 
6  S.  W.  171;  Voorhls  v.  Olmstead,  3  Hun  (N.  Y.)  744. 

»o  Nell  v.  Dayton,  43  Minn.  242,  45  N.  W.  229;  Philadelphia,  W.  & 
B.  R.  Co.  v.  Dubols,  12  Wall.  47,  20  L.  Ed.  265;  Warder  v.  Baldwin, 
61  Wis.  450,  8  N.  W.  257;  East  v.  Dolihlte,  72  N.  O.  562;  Adler  T. 
Pin,  80  Ala.  351,  354,  355. 

»i  Adler  v.  Pin,  80  Ala.  351. 

»*  Adler  v.  Pin,  80  Ala.  351;  Patterson  v.  Lytle,  11  Pa.  53;  QJer- 
•tadengen  v.  Hartzell,  9  N.  D.  268,  83  N.  W.  230. 

»'  Herman,  Estop.  §  327. 

I  U2.    *  Grissler  T.  Powers,  81  N.  Y.  57,  37  Am.  Rep.  475;  Tilton  r. 


§   63)  FOR   WHOM    ESTOPPEL    DOES    NOT   OPERATE.  177 

When  the  representation  is  made  on  the  sale  of  a  chattel  or 
security,  the  remedy  of  the  purchaser  is  not  limited  to  a  re- 
covery simply  of  the  money  advanced,  if  the  purchaser  would 
have  received  a  further  benefit  if  the  fact  had  been  as  repre- 
sented.2 An  estoppel  does  not  work  any  further  than  is 
reasonably  and  fairly  within  the  intendment  of  the  parties. 
A  person  is  estopped  only  so  far  as  his  words  or  conduct 
have  influenced  another  party.8  It  has  been  held  that,  where 
a  person  is  estopped  from  denying  the  genuineness  of  his 
indorsement  on  a  note,  the  holder  is  entitled  to  recover  from 
him  the  whole  amount  due  thereon;  and  it  is  immaterial 
whether  his  actual  damages  in  relying  on  the  representation 
be  more  or  less.* 


IN  WHOSE  FAVOR   ESTOPPEL  DOES  NOT  OPERATE. 

63.  An  equitable  estoppel  does  not  operate 

(a)  In  favor  of  a  stranger  to  the  transaction  in 

•which  the  representation  was  made; 

(b)  To  enforce  contracts  of  an  infant  or  married 

•woman  under  coverture; 

(c)  In  favor  of  a  person  chargeable  with  fraud, 

misconduct,  or  negligence. 

An  estoppel  can  only  operate  against  and  be  claimed  in 
favor  of  the  parties  or  the  privies  of  the  parties  to  the  trans- 
action in  the  course  of  which  the  acts  complained  of  were 
done.1  It  operates  in  favor  of  the  person  for  whom  it  was 
intended,  but  not  in  favor  of  a  stranger.3  Only  the  party 
who  has  been  misled  by  the  misrepresentations  or  conceal- 

Nelson,  27  Barb.  (N.  Y.)  595;  Picket!  v.  Bank,  32  Ark.  346;  Murray  v. 
Jones,  50  Ga.  109;  Campbell  v.  Nichols,  33  N.  J.  Law,  8L 

2  Grissler  v.  Powers,  81  N.  Y.  57,  37  Am.  Rep.  475. 

«  Geiler  v.  Littlefleld,  148  N.  Y.  603,  610,  43  N.  E.  66. 

*  Fall  River  Nat.  Bank  v.  Buffington,  97  Mass.  498.     But  contra, 
Campbell  v.  Nichols,  33  N.  J.  Law,  81. 

§  63.  i  Wright  v.  Hazen,  24  VL  143;  Parker  v.  Crittenden,  37 
Conn.  148;  Southard  v.  Button,  68  Me.  575;  Kinnear  Y.  Mackey,  85 
111.  9G;  Simpson  v.  Pearson,  31  Ind.  1,  99  Am.  Dec.  577;  Murray  v. 
Sells,  53  Ga.  257. 

*  Irish-American  Bank  v.  Ludlum,  49  Minn.  344,  51  N.  W.  1046. 

EATON.EQ.— 12 


178          .  EQUITABLE   ESTOPPEL.  (Ch.  7 

ment  to  his  injury  can  avail  himself  of  an  estoppel.8  Not 
only  are  the  parties  themselves  bound  by  an  estoppel,  but  so 
are  their  privies,  whether  by  blood,  by  estate,  or  by  contract. 
Estoppels  by  deed  and  by  record  have  always  been  declared 
to  run  in  favor  of  and  against  the  privies  in  estate  of  the 
immediate  parties  to  the  estoppel,  as  well  as  for  and  against 
the  parties  personally ;  and  there  is  no  reason  why  estoppels 
in  pais  should  not  be  within  the  rule.4  But  it  may  be  that 
a  privy  in  estate  may  be  relieved  from  the  result  of  an  estop- 
pel if  he  can  assume  the  position  of  a  bona  fide  purchaser, 
without  notice,  of  the  rights  or  interests  of  the  party  in 
whose  favor  the  estoppel  is  asserted.6 

The  contract  of  an  infant,  or  any  other  person  under  a 
disability,  cannot  be  enforced  by  estoppel.  As,  where  an  in- 
fant enters  into  a  contract  for  the  sale  of  real  estate,  and  the 
purchaser  takes  possession  and  assumes  the'  position  of  an 
owner,  without  objection  by  or  with  the  encouragement  of 
the  infant,  it  cannot  be  said  that  the  infant  is  estopped  from 
asserting  his  title.  But,  on  the  other  hand,  if  the  infant 
should  encourage  a  person  to  purchase  real  estate  of  another, 
knowing  that  the  title  was  in  himself,  he  cannot  assert  his 
title  against  such  purchaser  after  such  purchase.  An  estop- 
pel may  always  arise  to  prevent  an  infant  from  profiting  by 
his  own  wrong  or  fraud.'  In  those  states  where  the  com- 
mon-law disabilities  of  married  women  still  exist,  the  ques- 
tion frequently  arises  whether  a  married  woman  can  be 
bound  by  an  estoppel.  The  authorities  do  not  agree  in  all 
such  states  on  this  question.  Many  of  them  have  held  that, 
since  a  married  woman  cannot  be  bound  by  her  contracts  or 
conveyances,  even  though  affected  with  fraud,  she  cannot  be 
indirectly  bound  by  means  of  an  estoppel ;  and  that  an  estop- 
pel can  only  operate  where  she  attempts  to  enforce  a  right 
in  contravention  of  statements  which  she  has  previously 
made.7  Many  other  authorities  sustain  the  estoppel  against 

»  Ketchum  v.  Duncan,  96  U.  S.  696,  24  L.  Ed.  868. 

4  Wood  v.  Seeley,  32  N.  Y.  105,  116;  Hills  v.  Miller,  3  Paige  (N.  Y.) 
256.  24  Am.  Dec.  218;  Trustees  of  Watertown  v.  Oowen,  4  Paige  (N. 
Y.)  514,  27  Am.  Dec.  80;  Graves  v.  Ropers,  59  N.  H.  452. 

•  Rutz  v.  Kehn,  143  111.  558,  29  N.  E.  553. 

«  Evans  v.  Bucknell,  6  Ves.  174*  Fulton  v.  Moore,  25  Pa.  468; 
Dorlarque  v.  Cress.  71  111.  380;  Padfleld  v.  Pierce,  72  111.  500;  Mc- 
Beth  v.  Trahue,  69  Mo.  642;  Tantum  v.  Coleman,  26  N.  J.  Eq.  128. 

^  Merriara  v.  Railroad  Co.,  117  Mass.  241;  Lowell  v.  Daniels,  2 
Gray  (Mass.)  101,  61  Am.  Dec.  448;  President,  etc.,  of  Concord  Bank 


§   63)  FOR    WHOM   ESTOPPEL    DOES    NOT   OPERATE.  179 

her,  either  in  her  attempt  to  enforce  an  alleged  right  or  to 
maintain  a  defense.8  Where  the  statutes  have  removed  the 
common-law  disabilities  of  married  women,  and  have  given 
them  either  partial  or  complete  control  of  their  property, 
they  are  subjected  to  the  operation  of  estoppels  in  the  same 
manner  as  though  they  were  single.8 

The  doctrine  of  equitable  estoppel  is  founded  on  princi- 
ples of  equity  and  justice,  and  is  only  applied  to  conclude  a 
party  by  his  acts  and  admissions  intended  to  influence  the 
conduct  of  another,  when,  in  good  conscience  and  honest 
dealing,  he  ought  not  to  be  permitted  to  gainsay  them.10 
But  the  party  claiming  the  benefit  of  the  doctrine  must  him- 
self be  free  from  fraud  and  bad  faith,  for  the  doctrine  is  never 
applied  to  aid  a  fraudulent  purpose.11 

v.  Bellls,  10  Gush.  (Mass.)  276;  Bemis  v.  Call,  10  Allen  (Mass.)  512; 
Oglesby  Coal  Co.  v.  Pasco,  79  111.  164;  Board  of  Sup'rs  of  Kane  Co. 
v.  Herrington,  50  111.  232;  Schnell  v.  City  of  Chicago,  38  111.  382,  87 
Am.  Dec.  304;  Stivers  v.  Tucker,  126  Pa.  74,  17  Atl.  541;  Grlm's 
Appeal,  105  Pa.  383;  Glidden  v.  Strupler,  52  Pa.  400;  Keen  v.  Cole- 
man,  39  Pa.  299. 

»  This  Is  clearly  the  rule  In  England.  See  Stafford  v.  Stafford,  1 
De  Gex  &  J.  193;  Skottowe  v.  Williams,  7  Jur.  (N.  S.)  118;  Jones  v. 
Frost,  7  Ch.  App.  773,  776.  See,  also,  Bigelow  v.  Foss,  59  Me.  162; 
Drake  v.  Glover,  30  Ala.  382;  Frazier  v.  Gelston,  35  Md.  298;  Brink- 
erhoff  v.  Brinkerhoff,  23  N.  J.  Eq.  477,  483;  Connelly  v.  Branstler, 
3  Bush  (Ky.)  702,  96  Am.  Dec.  278. 

»  Dingens  v.  Clancey,  67  Barb.  (N.  Y.)  566;  Bodine  v.  Kilieen,  53 
N.  Y.  93;  Noel  v.  Kinney,  106  N.  Y.  74,  12  N.  E.  351;  Fryei  v. 
Rishell,  84  Pa.  521;  Hockett  v.  Bailey,  86  111.  74;  Wilder  v.  Wilder, 
89  Ala.  414,  7  South.  767,  9  L.  R  A.  97,  18  Am.  St.  Rep.  130;  God- 
frey v.  Thornton,  46  Wis.  677,  1  N.  W.  362. 

10  Wilcox  v.  Howell,  44  N.  Y.  398,  402;  Welland  Canal  Co.  v. 
Hathaway,  8  Wend.  (N.  Y.)  483,  24  Am.  Dec.  51. 

11  Royce  v.  Watrous,  73  N.  Y.  597;    Thome  v.  Mosher,  20  N.  J. 
Eq.  257;  Moore  v.  Bowman,  47  N.  H.  494. 


180  ELECTION.  (Ch.  8 

CHAPTER  VltL 

ELECTION. 

64-65.  Definition— Doctrine  of  Election. 

60.  Election  under  or  against  the  Instrument, 

67.  Application  of  Doctrine. 

68.  Conditions  Necessitating  Election. 

69.  Doctrine  when  Not  Applicable  to  Two  Distinct  Gifts. 

70.  Election  between  Dower  and  Testamentary  Gift. 

71.  Manner  of  Making  an  Election. 

72.  Ascertainment  of  Values. 

73.  Election  by  Persons  under  Disabilities. 

74.  Time  when  Election  must  be  Made. 

75.  Effect  of  Election, 

DEFINITION— DOCTRINE  OF  ELECTION. 

64.  Election,  in  the  sense  used  in  equity  jurispru- 
dence, is  the  obligation  imposed  on  a  party 
to  choose  between  two  inconsistent  or  alter- 
native rights  or  claims  in  cases  where  there 
is  clear  intention  of  the  person  from  whom 
he  derives  one  that  he  should  not  enjoy 
both.1 

66.  The  doctrine  of  election  may  also  be  stated 
thus:  When  a  person  purports  to  give  away 
to  a  third  the  property  of  another  person, 
and  by  the  same  instrument  makes  a  gift  to 
such  other  person,  the  latter  cannot  take  the 
gifc,  and  also  claim  his  own  property,  but 
must  elect  to  claim  either  under  or  against 
the  instrument. 

A  familiar  illustration  of  the  doctrine  of  election  is  stated 
thus :  If  A.,  by  will  or  deed,  gives  to  B.  property  belonging 
to  C.f  and  by  the  same  instrument  gives  other  property  be- 
longing to  himself  to  C.,  a  court  of  equity  will  hold  C.  to  be 

(3  64,  G5.     i  Story,  Eq.  Jur.  §  1075. 


§§   64-65)         DEFINITION DOCTRINE    OF    ELECTION.  181 

entitled  to  the  gift  made  to  him  by  A.  only  upon  the  implied 
condition  of  his  conforming  with  all  the  conditions  of  the 
instrument  by  renouncing  the  right  to  his  own  property  in 
favor  of  B.  He  is,  therefore,  put  to  his  election  to  take 
either  under  or  against  the  instrument.  If  C.  elects  to  take 
under,  and  consequently  to  conform  with,  all  the  provisions 
of  the  instrument,  no  difficulty  arises,  as  B.  will  take  C.'s 
property,  and  C.  will  take  the  property  given  to  him  by  A. 
If  C.  elects  to  retain  his  own  property,  against  the  terms  of 
the  instrument,  he  forfeits  so  much  of  the  property  given 
him  by  the  instrument  as  is  necessary  to  compensate  the  dis- 
appointed beneficiary  for  the  gift  which  he  has  lost.2 

It  has  been  stated  that  the  foundation  of  the  equitable  doc- 
trine of  election  is  the  intention,  explicit  or  presumed,  of 
the  author  of  the  instrument  to  which  it  is  applied.8  There 
can  be  no  doubt  of  the  truth  of  this  statement  as  to  instru- 
ments providing  for  the  disposition  of  property  which  the 
donor  knows  belongs  to  another.  But,  if  the  donor  is  under 
the  erroneous  impression  that  he  was  the  actual  owner  of 
the  property  disposed  of,  no  actual  intention  on  his  part 
could  have  existed.  As  has  been  said  by  Mr.  Pomeroy: 
"The  doctrine  of  election  has  become  a  positive  rule  of  the 
law  governing  the  devolution  and  transmission  of  property 
by  instruments  of  donation,  and  is  invoked  wholly  irrespec- 
tive of  the  intention  of  the  donor,  although  in  the  vast  ma- 
jority of  cases  it  undoubtedly  does  carry  into  effect  the 
donor's  real  purpose  and  design."  *  The  true  foundation  of 
the  doctrine  is  in  the  maxim  that  he  who  seeks  equity  must 
do  equity.  The  doctrine  is  applied  not  only  for  the  purpose 
of  carrying  out  the  intentions  of  the  donor  as  expressed  in 
or  implied  by  the  instrument,  but  also  for  the  purpose  of 
preserving  to  all  the  parties  the  equitable  rights  derived 
therefrom. 

The  doctrine  doubtless  had  its  origin  in  the  civil  law,  or, 
at  least,  a  close  analogy  thereto  existed  in  that  law.  In 
Justinian's  Institutes  the  doctrine  is  stated  thus :  "A  testa- 
tor may  not  only  give  as  a  legacy  his  own  property,  or  that 
of  his  heir,  but  also  the  property  of  others.  The  heir  is 


*  Streatfield  v.  Streatfield,   1  White  &  T.  Lead.  Gas.  Eq.  (Text- 
Book  Series)  pt.  1,  p.  40(>. 

a  Dillon  v.  Parker,  1  Swunst  359,  394,  401. 

*  Pom.  Eq.  Jur.  §  4G4.     See,  also,  LLaynes,  Eq.  (5th  Ed.)  p.  205. 


182  ELECTION.  (Ch.   8 

then  either  obliged  to  purchase  and  deliver  it,  or,  if  it  cannot 
be  bought,  to  give  its  value.  *  *  *  But  when  we  say 
that  a  testator  may  give  the  goods  of  another  as  a  legacy,  we 
must  be  understood  to  mean  that  this  can  only  be  done  if  the 
deceased  knew  that  what  he  bequeathed  belonged  to  another, 
and  not  if  he  were  ignorant  of  it ;  since,  if  he  had  known  it, 
he  would  not,  perhaps,  have  left  such  a  legacy."  6  The 
Roman  law,  it  will  be  noticed,  excludes  the  application  of  the 
doctrine  to  cases  proceeding  from  an  erroneous  supposition 
by  the  testator  that  he  was  the  owner  of  the  property.  But 
in  our  own  equity  jurisprudence  the  doctrine  applies  wheth- 
er the  donor  was  or  was  not  aware  that  he  was  dealing  with 
his  own  property. 


ELECTION  UNDER  OB  AGAINST  THE  INSTRUMENT. 

66.  The  donee  either  must  elect  to  take 

(a)  Under  the  instrument,  in  -which  case  he  must 

carry  out  all  its  provisions,  and  transfer  his 
own  property  disposed  of  thereunder  to  the 
person  named  as  the  recipient  thereof;  or 

(b)  Against   the   instrument,  in  •which   case   he 

forfeits  so  much  of  the  gift  intended  for 
him  as  is  necessary  to  compensate  the  per- 
son disappointed  by  his  election,  and  he 
•will  be  entitled  to  any  surplus  remaining 
after  such  compensation. 

If  the  donee  accepts  of  the  first  alternative,  the  property 
belonging  to  him  and  disposed  of  by  the  donor  to  another 
person,  named  in  the  instrument,  must  be  transferred  to 
such  person  before  such  donee  can  claim  his  gift  under  such 
instrument.  In  no  other  way  can  he  comply  with  and  ful- 
fill the  terms  of  the  instrument.  But  where  the  donee  elects 
against  the  instrument,  and  refuses  to  give  up  his  property, 
and  accept  the  gift  so  made  to  him,  a  question  of  more  diffi- 
culty arises.  The  tacit  condition  of  the  instrument  is  that 
the  donee  shall  either  confirm  the  instrument,  or  make  com- 

«  Just.  Inst.  II.  tit  20,  §  4.  The  French  Code  (Code  Civ.  £  1021) 
rejects  altogether  the  doctrine  of  election. 


§   66)       ELECTION    UNDER    OR    AGAINST   THE   INSTRUMENT.          183 

pensation  to  the  disappointed  donee  for  what  he  loses  by 
the  failure  of  the  refractory  donee  to  comply  with  the  terms 
thereof.  In  other  words,  if  A.,  by  will,  gives  C.'s  prop- 
erty to  B.  and  to  C.  property  of  his  own,  and  C.  elects  to 
retain  his  own  property,  he  cannot  also  take  the  gift,  and 
thus  deprive  B.  of  any  benefit  under  the  will.  C.  will  be  re- 
quired, because  of  his  failure  to  accept  the  provisions  of  the 
will  relating  to  the  disposition  of  property  belonging  to  him, 
to  permit  compensation  to  be  made  to  B.,  which  will  be  reg- 
ulated according  to  the  value  of  the  property  given  to  B.  by 
the  will.  If  the  value  of  the  property  given  to  B.,  but  re- 
tained by  C.,  is  greater  than  that  of  the  gift  to  C.,  a  court 
of  equity  will  decree  the  transfer  to  B.  of  the  property  in- 
tended for  C.  If  such  value  is  less  than  that  of  the  gift,  an 
amount  equal  in  value  to  the  property  retained  by  C.  must 
be  paid  to  B.,  and  the  surplus  will  be  restored  to  C.  Mr. 
Swanston  states  the  proposition  thus:  (i)  That,  in  the 
event  of  an  election  to  take  against  the  instrument,  courts 
of  equity  assume  jurisdiction  to  sequester  the  benefits  in- 
tended for  the  refractory  donee,  in  order  to  secure  compen- 
sation to  those  whom  his  election  disappoints.  (2)  That 
the  surplus  after  compensation  does  not  devolve  as  undis- 
posed of,  but  is  restored  to  the  donee;  the  purpose  being 
satisfied  for  which  alone  the  court  controlled  his  legal  right.1 
The  rule  as  to  compensation  has  not  been  often  applied, 
since  a  donee  almost  invariably  elects  against  an  instrument, 
and  to  retain  his  own  property,  because  the  value  thereof  is 

§  66.  i  Gretton  v.  Haward,  1  Swanst.  409,  in  which  case  Sir  Thom- 
as Plummer,  M.  R.,  makes  use  of  the  following  language:  "I  conceive 
it  to  be  the  universal  doctrine  that  the  court  possesses  power  to 
separate  the  estate  till  satisfaction  has  been  made,  not  permitting 
It  to  devolve"  in  the  customary  course.  Out  of  that  sequestered  es- 
tate so  much  is  taken  as  is  required  to  indemnify  the  disappointed 
devisee.  If  Insufficient,  it  is  left  in  his  hands.  In  the  case  to 
which  I  have  referred,  Lord  Loughberry  uses  the  expression  that 
the  court  'lays  hold  of  what  is  devised,  and  makes  compensation 
out  of  that  to  the  disappointed  party.'  *  *  *  It  would  be  too 
much  now  to  dispute  this  principle,  established  more  than  a  cen- 
tury, merely  on  the  ground  of  difficulty  In  reducing  it  to  practice, 
and  disposing  of  the  estate  taken  from  the  heir  at  law  without 
any  will  to  guide  it;  for  to  this  purpose  there  is  no  will.  The  will 
destined  to  the  devisee  not  this  estate,  but  another.  He  takes  by 
the  net  of  the  court  (an  net  truly  described  as  a  strong  operation); 
not  by  descent,  not  by  devise,  but  by  decree,— a  creature  of  equity." 


184  ELECTION.  (Ch.   8 

greater  than  the  gift  made  to  him  by  the  donor,  in  which 
case  the  gift  is  absolutely  forfeited  by  his  election.  From 
this  fact  arise  the  dicta  in  many  cases  to  the  effect  that,  if 
the  donee  elects  against  the  instrument,  he  forfeits  the  es- 
tate thereby  conferred  on  him.2  But  it  may  happen  that 
the  donee  elects  to  retain  his  own  property,  though  less  in 
value  than  the  donor's  gift  to  him,  owing,  perhaps,  to  some 
sentimental  attachment  to  such  property.  In  such  case  the 
donee  does  not  forfeit  the  entire  gift  under  the  instrument, 
but  only  so  much  thereof  as  is  sufficient  to  compensate  the 
disappointed  donee  for  what  he  has  lost  because  of  such 
election.  This  rule  is  now  generally  accepted  by  the  au- 
thorities.* 

APPLICATION  OF  DOCTRINE. 

67.  The  doctrine  of  election  applies  to  property  of 
every  kind  and  to  interests  of  every  descrip- 
tion.1 

The  doctrine  is  applicable  to  deeds  as  well  as  to  wills,  al- 
though most  frequently  the  cases  have  arisen  under  wills.* 
And  it  also  applies  to  interests  remote,  contingent,  or  of 

«  Cowper  v.  Scott,  3  P.  Wms.  124;  Cooke8  v.  Hellier,  1  Ves.  Sr. 
235;  Pugh  v.  Smith,  2  Atk.  404;  Wilson  v.  Townsbend,  2  Ves.  Jr. 
697;  Thellusson  v.  Woodford,  13  Ves.  220;  Hlbbs  v.  Insurance  Co.,  40 
Ohio  St.  543. 

»  Streatfield  v.  Streatfleld,  Cas.  t  Talb.  176;  Id.,  1  White  &  T. 
Lead.  Cas.  Eq.  (Text-Book  Series)  pt.  1,  p.  398;  Gretton  v.  Haward, 

1  Swanst  433;  Rogers  v.  Jones,  3  Ch.  Div.  688;  Cauffman  v.  Cauff- 
man,  17  Serg.  &  R.  (Pa.)  16,  24,  25;  In  re  Delaney's  Estate,  49  Cal. 
77;  Wilbanks  v.  Wilbanks,  18  111.  17;  Brown  v.  Brown,  42  Minn. 
270,  44  N.  W.  250;    Roe's  Ex'x  v.  Roe,  21  N.  J.  Eq.  253;    In  re  Vim 
Dyke's  Appeal,  60  Pa.  481,  490;  Key  v.  Griffin,  1  Rich.  Eq.  (S.  C.) 
67;   In  re  Sandoe's  Appeal,  65  Pa,  314;   Stump  v.  Findlay,  2  Rawle 
(Pa.)  174. 

{67.  il  Watson,  Comp.  Eq.  p.  177;  Wilson  v.  Townshend,  2 
Ves.  Jr.  697;  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  480. 

2  Bigland  v.  Huddleston,  3  Brown,  Ch.  286,  note;  Moore  v.  Butler, 

2  Schoales  &  L.  266;  Anderson  v.  Abbott,  23  Beav.  457;  Mosley  v. 
Ward,  29  Beav.  407;  Codrington  v.  Lindsay,  8  Ch.  App.  578.  same 
case,  sub  norn.,  Codrington  v.  Codrington,  L.  R.  7  H.  L.  854;  Sigmon 
v.  Uawn,  87  N.  0.  450;  Brown  v.  Ward,  103  N.  C.  178,  9  S.  E.  300. 


§68)  CONDITIONS    NECESSITATING   ELECTION.  185 

small  value,  as  well  as  to  those  which  are  immediate,  and  of 
great  value.* 


CONDITIONS  NECESSITATING   ELECTION. 

68.  To  necessitate  an  election  there  must  appear 
in  the  instrument: 

(a)  A  clear  intention  on  the  part  of  the  donor  to 

dispose  of  property  which  is  not  his  own. 

(b)  A  valid  gift  of  property  absolutely  and  actu- 

ally owned  by  the  donor. 

There  must  be  clearly  apparent  in  the  instrument  an  in- 
tention of  the  donor  to  dispose  of  property  not  his  own."1 
There  can  be  no  election  unless  the  donor  confers  some  ben- 
efit upon  the  donee,  and  by  the  terms  of  the  instrument  as- 
sumes to  dispose  of  some  right  of  the  latter.2  But  it  is 
immaterial  whether  the  donor  knew  that  the  property  was 
not  his  own,  or  by  mistake  conceived  it  to  be  his  own ;  for, 
in  either  case,  if  the  intention  to  dispose  of  it  clearly  ap- 
pears, his  disposition  will  be  sufficient  to  raise  a  case  of  elec- 
tion.3 

The  fact  of  the  disposition  by  one  person  of  the  property 
of  another  must  be  very  clearly  shown.  Prima  facie  it  is 
not  to  be  supposed  that  a  testator  disposes  of  that  which  is  not 
his  own.  It  must  be  by  demonstration,  or  by  necessary  im- 
plication, plain  that  he  could  not  have  meant  otherwise,  be- 

»  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  480;  Highway  v.  Banner,  1 
Brown,  Ch.  584;  Wilson  v.  Townshend,  2  Ves.  Jr.  697. 

§  68.  i  Forrester  v.  Cotton,  1  Eden,  531;  Dillon  v.  Parker,  1 
Swanst.  359;  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  166;  Havens  v. 
Sackett,  15  N.  Y.  365;  Penn  v.  Guggenheimer,  76  Va.  839;  Weeks  v. 
Weeks,  77  N.  C.  421;  Pennsylvania  Co.  for  Insurance  qn  Lives  v. 
Stokes,  61  Pa.  136. 

2  Moore  v.  Baker,  4  Ind.  App.  118,  30  N.  E.  629,  51  Am.  St.  Rep. 
203. 

«  Whistler  v.  Webster,  2  Ves.  Jr.  370;  Thellusson  v.  Woodford, 
13  Ves.  221;  Whltley  v.  Whitley,  31  Beav.  173;  Coutts  v.  Acworth, 
L.  R.  9  Eq.  519;  Stump  v.  Findlay,  2  Rawle  (Pa.)  168,  174;  Moore  v. 
Harper,  27  W.  Va.  362;  Van  Schaack  v.  Leonard,  164  111.  602,  45  N. 
E.  982. 


186  ELECTION.  (Ch.   8 

fore  the  necessity  of  an  election  exists.4  If  the  instrument 
declares  by  express  terms  that  the  gift  is  to  be  in  lieu  of 
the  rights  of  the  donee  in  other  property  disposed  of  by  the 
donor  to  another  person,  there  can  be  no  difficulty  in  de- 
termining the  intention  of  the  donor.  But  the  use  of  ex- 
press terms  is  not  indispensable.  If  a  reasonable  and  fair 
interpretation  of  the  instrument  discloses  an  intent  of  the 
donor  to  put  the  donee  to  an  election,  it  is  sufficient.  But 
it  is  not  sufficient  that  the  words  used  express  a  mere  wish, 
desire,  or  expectation  that  a  beneficiary  will  dispose  of  prop- 
erty in  a  certain  way.* 

Disposition  of  Partial  Interest. 

Where  the  instrument  disposes  of  property  in  which  both 
the  donor  and  donee  are  interested,  it  is  sometimes  diffi- 
cult to  determine  whether  it  was  the  intention  of  the  donor 
to  dispose  of  the  entire  property,  and  thus  put  the  donee  to 
his  election.  In  such  a  case  the  presumption  is  that  he  in- 
tended to  give  only  that  which  he  might  properly  dispose 
of,  and  nothing  more ;  and  this  presumption  will  always 
prevail  unless  it  be  clearly  shown  that  the  donor  intended 
to  dispose  of  the  entire  property."  Thus  if,  in  making  a 
devise,  the  testator  uses  general  expressions,  such  as  "all  my 
lands,"  "all  my  estate,"  no  case  of  election  arises,  for  it  does 
not  plainly  appear  that  he  meant  to  dispose  of  anything  but 
what  was  strictly  his  own ; 7  but  where,  owning  merely  a  par- 

*  Rancliffe  v.  Parkyns,  6  Dow,  149,  179,  per  Eldon,  L.  C.;  Havens 
T.  Sackett,  15  N.  Y.  365. 

o  Langslow  v.  Langslow,  21  Beav.  552.  And  see,  also,  Blacket  v. 
Lauib,  14  Beav.  482;  Tibbits  v.  Tibbits,  1  Jac.  318,  in  which  case  a 
testator  devised  to  his  son  and  heir  his  real  and  personal  property, 
with  a  recommendation  that  such  son  continue  his  cousins  in  pos- 
session of  certain  farms  as  long  as  they  continue  to  "manage  the 
same  in  a  good  and  husbandlike  manner,  and  to  duly  pay  their 
rents."  It  was  held  that  a  trust  was  created  for  the  cousins,  and 
that  the  son  was  required  to  elect  to  continue  them  as  tenants,  or 
to  make  td  them  compensation  for  the  value  of  the  tenancy  out  of 
the  property  given  him  by  the  testator. 

«  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  171;  Maddison  v.  Chapman, 
1  Johns.  &  U.  470;  Wilkinson  v.  Dent,  6  Ch.  App.  339;  Penn  v. 
Giifwnheimer,  76  Va.  839;  Havens  v.  Sackett,  15  N.  Y.  365;  Toney 
v.  SpniKlns,  80  Ala.  541. 

-  Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650;  Maxwell  v.  Max- 
well. 2  De  Gex,  M.  &  G.  705,  713;  Dummer  v.  Pitrher.  2  Mylne  &  K. 
2<;-_':    Sherman   v.    Lewis.   44   Minn.    107,  40  N.   W.   318;   Haack    v. 
\Veickeu,  118  N.  Y.  67,  23  N.  E.  133. 


§   68)  CONDITIONS    NECESSITATING    ELECTION.  187 

tial  or  individual  interest,  the  testator  devises  the  entire  prop- 
erty, describing  it  specifically,  a  case  for  an  election  arises.8 

Evidence  Outside  the  Instrument. 

If  the  language  of  the  donation  contained  in  the  instru- 
ment is  ambiguous  and  doubtful,  and  it  does  not  clearly 
appear  therefrom  that  it  was  the  donor's  intention  to  dis- 
pose of  property  not  his  own,  parol  evidence  dehors  the 
instrument  cannot  be  introduced  to  show  such  an  intention, 
and  thus  give  rise  to  the  necessity  of  an  election.9  This 
seems  to  be  a  fixed  and  well-established  rule,  based  upon 
the  decided  weight  of  authority ;  but  in  a  comparatively  re- 
cent English  case  it  is  stated:  "The  presumption,  in  the 
absence  of  evidence  to  the  contrary,  is  that  the  testator,  by 
his  will,  intends  merely  to  bequeath  that  which  belongs  to 
him.  On  the  other  hand,  it  is  only  a  presumption,  which 
may  be  rebutted  even  by  parol  evidence  showing  that,  un- 
der a  misapprehension  of  the  law,  the  testator  believed  that 
the  property  which  did  not  belong  to  him  did  really  belong 
to  him."  10  ' 

Disposition  by  Will  of  After- Acquired  Lands. 

Unaffected  by  statute,  it  has  always  been  held  that  a  will 
of  real  estate  speaks  from  the  time  of  its  execution,  and 
that  a  disposition  of  real  property  acquired  after  such  ex- 
ecution is'  void.  And  therefore,  where  a  testator  devised 
after-acquired  land  away  from  his  heir,  which  he  neverthe- 
less took  by  descent,  he  did  so  subject  to  the  application 
of  the  doctrine  of  election;  for  the  rule  in  such  cases  was 
that,  if  the  testator  showed  a  clear  intention  of  disposing  of 
after-acquired  estates,  the  heir  was  obliged  to  elect  between 
the  after-acquired  estates  which  would  descend,  to  him,  and 
any  benefits  given  him  by  the  will.11  But  this  rule  has  been 

•  Penn  v.  Guggenheimer,  76  Va.  839  (devise  of  "home  place,"  In 
which  the  testator  owned  only  an  undivided  interest);  Shuttleworth 
v.  Greaves,  4  Mylne  &  C.  35. 

»  Sherman  v.  Lewis,  44  Minn.  107,  46  N.  W.  318;  Stratton  v.  Best, 
1  Ves.  Jr.  285;  Rutter  v.  MacLean,  4  Ves.  537;  Seamen  v.  Woods,  24 
Beav.  372;  Druce  v.  Denison,  6  Ves.  385;  City  of  Philadelphia  v. 
Davis,  1  Whart.  (Pa.)  490;  Timberlake  v.  Parish's  Ex'r,  5  Dana 
(Ky.)  345;  Miller  v.  Springer,  70  Pa.  273. 

10  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  170,  per  Jessell,  M.  R. 

11  Thellusson  v.  Woodford,  13  Ves.  209;  Rendlesham  v.  Woodford, 


188  ELECTION.  (Ch.    8 

abrogated  by  statute,  both  in  England  and  in  the  states  of 
this  country,  and  it  is  now  provided  that  wills  speak  from 
the  time  of  the  testator's  death,  and  consequently  carry  aft- 
er-acquired lands. 

Election  under  Power  of  Appointment. 

Cases  of  election  under  powers  of  appointment  do  not 
often  arise  in  the  United  States.  But  under  certain  cir- 
cumstances such  cases  may  arise,  and  in  view  of  this  fact 
it  may  be  well  to  briefly  consider  some  of  the  principles  re- 
lating thereto.  Where,  under  a  special  power,  an  express 
appointment  is  made  to  a  stranger  to  the  power,  which  is 
therefore  void,  and  a  benefit  is  also  conferred  by  the  same 
instrument  upon  a  person  entitled  in  default  of  appointment, 
the  latter  will  be  put  to  his  election.1*  In  order  to  create 
the  necessity  of  an  election,  the  appointor  must  give  some 
property  of  his  own  to  the  object  of  the  power,18  for,  if  no 
property  is  given  but  what  is  subject  to  the  power,  there  is 
nothing  out  of  which  compensation  can  be  made.1*  There 
must  also  be  an  intention  to  make  an  unlawful  and  wrong- 
ful exercise  of  the  power  of  appointment.  If  the  wrong- 
ful appointment  is  conditional  upon  the  power  of  the  donor 
to  lawfully  make  it,  there  can  be  no  case  for  an  election, 
because  there  has  not  been  a  positive  disposition  of  prop- 
erty belonging  to  another.1* 

Disposition  by  Will  which  is  Ineffectual. 

Questions  frequently  arose,  before  the  modern  statutes 
permitting  infants  and  married  women  to  make  a  will  of 
both  personal  and  real  property,  relative  to  the  application 
of  the  doctrine  of  election  to  cases  where  infants  and  mar- 
ried women  ineffectually  attempted  to  devise  real  property. 
These  questions  are  of  no  importance  at  the  present  time, 
and  it  would  be  futile  to  discuss  them.  But  it  sometimes 
occurs  that  a  testator  attempts  to  dispose  of  property  sit- 

1  Dow,  249;  Churchman  v.  Ireland,  4  Sim.  520;  Greenwood  v.  Penny, 
12  Beav.  403. 

«  Snell,  Eq.  p.  207. 

"  Whistler  v.  Webster,  2  Ves.  Jr.  867;  Tomkyns  T.  Blane,  28 
Beav.  423;  Reid  v.  Reid,  25  Beav.  469;  Beauclerk  v.  James,  34  Ch. 
Dlv.  100. 

i«  Pom.  Eq.  Jur.  ft  478;  Brlstow  v.  Warde,  2  Ves.  Jr.  337. 

»•  Church  v.  Kemble,  5  Sim.  525. 


§    08)  CONDITIONS    NECESSITATING    ELECTION.  189 

uated  in  more  than  one  state,  and  the  will  is  valid  in  the 
state  where  executed,  but  void  in  so  far  as  it  undertakes  to 
devise  to  a  stranger  land  situated  in  a  foreign  state,  be- 
cause not  executed  in  conformity  with  its  laws.  The  ques- 
tion then  arises  as  to  whether  the  heirs,  who  are  entitled  to 
take  such  land  as  intestate  property,  are  required  to  elect 
between  it  and  the  valid  legacies  bequeathed  to  them  by  the 
will,  or  are  entitled  to  receive  both.  The  settlement  of  this 
question  depends,  as  in  most  other  cases  of  election,  upon 
the  intention  of  the  testator  as  expressed  in  the  will.  The 
English  rule  has  arisen  in  cases  of  devises  of  lands  situated 
in  Scotland  by  testators  residing  in  England,  and  may  be 
stated  as  follows :  If  the  disposition  of  real  property  is 
general  in  terms,  and  not  by  specific  reference  to  the  foreign 
property,  the  testator  will  be  assumed  to  have  intended  to 
confine  such  disposition  to  property  which  he  could  legally 
dispose  of  by  that  will,  and  the  heir  to  whom  the  heritable 
property  in  the  foreign  country  would  descend  is  not  put  to 
an  election.16  But,  on  the  other  hand,  if  there  is  a  specific 
devise  of  the  land  in  the  foreign  country,  either  expressly 
or  by  necessary  implication,  an  election  is  required.17  This 
rule  is  of  universal  application  in  the  courts  of  the  states  of 
this  country.1' 

Gift  to  Person  Required  to  Elect. 

As  the  doctrine  of  election  depends  upon  compensation, 
it  will  not  be  applicable  unless  there  be  an  available  fund 
from  which  compensation  can  be  made;  that  is,  there  will 
be  no  ground  for  election  unless  the  donor  bestows  some 
property  absolutely  and  actually  his  own  on  the  person  re- 
quired to  elect.19  Thus,  where  a  testator  devises  to  one  of 
his  daughters  land  owned  by  the  husband  of  another  daugh- 
ter, and  then  devises  another  tract  to  this  last-named  daugh- 


i«  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705;  Allen  v.  Ander- 
son, 5  Hare,  163;  Johnson  v.  Telford,  1  Russ.  &  M.  244;  Maxwell  v. 
Hyslop,  L.  R.  4  Eq.  407;  Jones  v.  Jones,  8  Gill  (Md.)  197. 

IT  Brodie  v.  Barry,  2  Ves.  &  B.  127;  Orrell  v.  Orrell,  6  Ch.  App. 
802;  Dewar  v.  Maitland,  L.  R.  2  Eq.  834. 

is  Van  Dyke's  Appeal,  60  Pa.  481.  489;  Kearney  T.  Macomb,  16 
N.  J.  Eq.  189;  Jones  v.  Jones,  8  Gill  (Md.)  197. 

«  Snell,  Eq.  p.  240. 


100  ELECTION.  (Ch.   8 

ter,  the  husband  cannot  be  required  to  elect,  because  noth- 
ing has  been  devised  to  him.20 


DOCTRINE  WHEN  NOT  APPLICABLE  TO  TWO 
DISTINCT  GIFTS. 

69.  The  doctrine  of  election  is  not  applicable  to 

two  distinct  gifts  of  the  testator's  own  prop- 
erty, one  beneficial  and  one  onerous. 

A  case  which  is  sometimes  confounded  with  the  doctrine 
of  election  is  where  a  testator  makes  two  distinct  gifts  of  his 
own  property,  one  beneficial  and  the  other  onerous;  and 
the  question  is  whether  the  donee  is  entitled  to  elect  to  ac- 
cept the  first  and  disclaim  the  second.  The  general  rule  in 
such  cases  is  that  the  two  gifts  are  distinct  and  separate, 
and  the  beneficiary  may  accept  what  is  beneficial,  and  re- 
ject what  is  onerous,1  although  it  has  been  held  otherwise 
where  an  intention  of  the  testator  clearly  exists  to  make  an 
acceptance  of  the  benefit  conditional  upon  the  assumption 
of  the  burden.2  If  the  gift  is  single  and  undivided,  it  is 
prima  facie  evidence  that  it  was  the  testator's  intention  that 
the  legatee  should  take  all  the  gift  or  none  of  it.* 

ELECTION  BETWEEN  DOWEB  AND  TESTAMENTABY 

GIFT. 

70.  Unless  otherwise  regulated  by  statute,  if  the 

will  declares,  in  express  terms  or  by  clear 
and  necessary  implication,  a  testamentary 
gift  to  be  in  lieu  of  dower,  the  widow  is  re- 
quired to  elect;  but,  if  such  will  contains  no 
such  express  or  implied  declaration,  every 

to  Bennett  v.  Harper,  36  W.  Va.  646,  15  S.  B.  143. 

§  69.  i  Andrew  v.  Trinity  Hall,  9  Ves.  525;  Moffett  v.  Bates,  3 
Smale  &  G.  468;  Syer  v.  Gladstone,  30  Ch.  Dlv.  614. 

»  Talbot  v.  Earl  of  Radnor,  3  Mylne  &  K.  252;  Green  v.  Britten. 
42  Law  J.  Ch.  187. 

«  Guthrle  v.  Walrond,  22  Ch.  Div.  573,  577;  Green  v.  Britten,  42 
Law  J.  Ch.  187. 


§   70)  ELECTION    BETWEEN    DOWER    AND    DEVISE.  191 

devise  or  bequest  to  the  wife  will  be  pre- 
sumed to  be  in  addition  to  her  dower  right, 
and  the  widow  is  not  required  to  elect.1 

The  most  frequent  application  of  the  doctrine  of  election 
occurs  in  cases  of  testamentary  gifts  to  widows,  either  ex- 
pressly in  lieu  of  dower  or  inconsistent  therewith.  At  com- 
mon law,  express  words  were  necessary  to  require  an  elec- 
tion by  the  widow  between  her  dower  and  a  testamentary 
gift  from  her  husband ;  the  presumption  being  that  the  gift 
was  intended  in  addition  to  her  dower.2  But  in  equity  it  is 
now  held  that  the  necessity  of  election  arises  even  if  no 
express  declaration  be  contained  in  the  will  that  the  gift  is 
in  lieu  of  dower.  If  the  will  contains  a  provision  which  is 
inconsistent  with  the  assertion  of  the  widow's  right  of  dow- 
er, the  widow  may  be  required  to  elect.8  If  the  legacy  is 
not  declared,  by  express  words  in  the  will,  to  be  in  lieu  of 
dower,  the  inquiry  is  whether  such  an  intention  in  the  tes- 
tator is  to  be  collected  by  clear  and  manifest  implication 
from  the  provisions  in  the  will.  To  permit  the  deduction  of 
such  an  implied  intention,  the  claim  of  dower  must  be  in- 
consistent with  the  will,  and  repugnant  to  its  dispositions, 
or  some  of  them.*  As  was  said  in  a  comparatively  recent 
New  York  case:  "There  can  be  no  controversy  as  to  the 
general  principles  governing  the  question  of  election  be- 
tween dower  and  a  provision  for  the  widow  in  the  will. 
Dower  is  favored.  It  is  never  excluded  by  a  provision  for 
a  wife,  except  by  express  words  or  by  necessary  implica- 
tion. Where  there  are  no  express  words,  there  must  be  on 
the  face  of  the  will  a  demonstration  of  the  intention  of  the 
testator  that  the  widow  shall  not  take  both  dower  and  the  pro- 
vision. The  will  furnishes  this  demonstration  only  when  it 
clearly  appears  without  ambiguity  or  doubt  that  to  permit 

§  70.  i  Church  v.  Bull,  2  Denio  (N.  Y.)  430,  43  Am.  Dec.  754;  Ad- 
Bit  v.  Adsit,  2  Johns.  Ch.  (N.  Y.)  448;  Birmingham  v.  Kirwan,  2 
Schoales  &  L.  452;  Hall  v.  Hill,  1  Dru.  &  War.  94,  103. 

2  Gosling  v.  Warburton,  Cro.  Eilz.  128;  Nottley  v.  Palmer,  2  Drew. 
93. 

s  In  re  Zahrt,  94  N.  Y.  605,  609;  Ellis  v.  Lewis,  3  Hare,  310. 

*  Adslt  v.  Adslt,  2  Johns.  Ch.  (N.  Y.)  448,  7  Am.  Dec.  539.  See, 
also,  Birmingham  v.  Kirwan,  2  Schoales  &  L.  444;  Butcher  v.  Kemp, 
5  Madd.  61;  Bacon  Y.  Cosby,  4  De  Gex  &  S.  261. 


192  ELECTION.  (Ch.   8 

the  widow  to  claim  both  dower  and  the  provision  would 
interfere  with  the  other  dispositions,  and  disturb  the  scheme 
of  the  testator,  as  manifested  by  his  will."  6  And  the  fact 
that  the  testamentary  provision  is,  adequate  or  reasonably 
proportionate  to  the  value  of  the  dower  is  not  controlling 
upon  the  question  of  intention,*  although  the  fact  of  the 
inadequacy  of  the  provision,  which  was  known  to  the  tes- 
tator, is  considered  a  strong  indication  that  it  was  not  the 
testator's  intention  to  require  his  widow  to  elect  between 
such  provision  and  her  dower.7  This  rule  has  been  modi- 
fied by  the  statutes  of  many  of  the  states,  so  that,  unles? 
there  is  an  express  declaration  in  the  husband's  will  that  the 
wife  should  enjoy  both  the  testamentary  disposition  and  her 
dower,  she  will  be  required  to  elect.8 

6  Konvalinka  v.  Schlegel,  104  N.  Y.  125,  129,  9  N.  E.  80S;  citing 
fianford  -v.  Jackson,  10  Paige  (N.  Y.)  266;  Church  v.  Bull,  2  Deuio 
(N.  Y.)  430,  43  Am.  Dec.  754;  Lewis  v.  Smith,  9  N.  Y.  502,  61  Am. 
Dec.  706;  Fuller  v.  Yates,  8  Paige  (N.  Y.)  325;  Wood  v.  Wood,  5 
Paige  (N.  Y.)  596,  28  Am.  Dec.  451;  Havens  v.  Havens,  1  Sandf.  Ch. 
(N.  Y.)  324,  331.  See,  also,  Nelson  v.  Brown,  144  N.  Y.  384,  39  N.  E. 
355;  Preston  v.  Jones,  9  Pa.  456,  460;  Fulton  v.  Moore,  25  Pa.  468; 
Cox  v.  Rogers,  77  Pa.  160;  Stark  v.  Hunton,  1  N.  J.  Eq.  217;  Col- 
gate's Ex'r  v.  Colgate,  23  N.  J.  Eq.  372;  Pratt  v.  Douglas,  38  N.  J. 
Eq.  536;  O'Brien  v.  Elliot,  15  Me.  125;  Weeks  v.  Patten,  18  Me.  42; 
Reed  v.  Dickerman,  12  Pick.  (Mass.)  145,  149;  Hyde  v.  Baldwin,  17 
Pick.  (Mass.)  303,  308;  In  re  Kempton,  23  Pick.  (Mass.)  163;  Smith 
v.  Smith,  14  Gray  (Mass.)  532;  Lord  v.  Lord,  23  Conn.  327,  331; 
Ailing  v.  Chatfleld,  42  Conn.  276;  Blair  v.  Wilson,  57  Iowa,  178,  10 
N.  W.  327;  Daugherty  v.  Daugherty,  69  Iowa,  679,  29  N.  W.  778; 
Howard  v.  Watson,  76  Iowa,  229,  41  N.  W.  45. 

e  Lewis  v.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  706. 

i  Tracey  v.  Shumate,  22  W.  Va.  474;  Atkinson  v.  Button,  23  W. 
Va.  197. 

s  Pom.  Eq.  JUT.  §  494,  and  statutes  cited  In  note.  The  English 
statute  is  to  the  effect  that:  "While  a  husband  shall  devise  any 
laud  out  of  which  his  widow  would  be  entitled  to  dower  If  the 
same  were  not  so  devised,  or  any  estate  or  Interest  therein  to  or 
for  the  benefit  of  his  widow,  such  widow  shall  not  be  entitled  to 
dower  out  of  or  In  any  land  of  her  said  husband,  unless  a  con- 
trary Intention  shall  be  declared  by  his  will."  3  &  4  Wm.  IV.  c. 
105.  In  some  of  the  states  the  right  of  dower  seems  to  be  abso- 
lutely barred  If  the  widow  takes  anything  under  the  will, — as  In 
Florida  and  North  Carolina.  In  others  she  Is  required  to  elect  un- 
less a  contrary  Intention  is  expressly  or  Implledly  declared  in  the 
will.  The  following  cases  declare  this  to  be  the  rule  In  the  re- 
spective states:  Alabama,  Dean  v.  Hart,  62  Ala.  308;  Arkansas, 
Apperson  v.  Bolton,  29  Ark.  418;  Illinois,  Blatchford  v.  Newberry, 


§   70)  ELECTION    BETWEEN    DOWER    AND    DEVISE.  193 

Special  Circumstances  Necessitating  Election. 

If  the  disposition  is  expressly  declared  to  be  in  lieu  of 
dower,  the  widow  must,  of  course,  be  put  to  an  election 
If  a  trust  be  created  of  all  the  estate  of  the  testator,  and 
out  of  the  income  thereof  the  wife  is  given  a  certain  annuity, 
she  is  put  to  an  election  between  such  annuity  and  her  dow- 
er.9 But  where  a  testator,  after  providing  for  the  payment 
of  certain  specific  legacies,  gave  his  residuary  estate,  botl 
real  and  personal,  to  his  executors  to  sell  and  dispose  of 
the  same,  and  divide  the  proceeds  equally  between  his  "wife 
and  children,  share  and  share  alike,"  it  was  held  that  the 
widow  was  not  put  to  her  election,  but  was  entitled  to  dower 
in  addition  to  the  provision  made  for  her  in  the  will.10  The 
mer3  creation  of  a  trust  for  the  sale  of  real  property  and  its 
distribution  is  not  inconsistent  with  the  existence  of  a  dow- 
er interest  in  the  same  property.11  As  a  general  rule,  a 
devise  of  property  to  others  in  a  will,  and  a  testamentary 
provision  in  favor  of  the  widow,  will  not  put  her  to  an  elec- 
tion.18 The  testamentary  provision  must  be  clearly  incon- 

99  111.  11;  Indiana,  Bagsdale  v.  Parrish,  74  Ind.  191;  Kansas,  Sill  v. 
Sill,  3i  Kan,  248,  1  Pac.  556;  Kentucky,  Smith  v.  Bone,  7  Bush,  367; 
Exchange  &  Deposit  Bank  of  Ourngsville  v.  Stone,  80  Ky.  109; 
Maine,  Hastings  v.  Clifford,  32  Me.  132;  Allan  v.  Pray,  12  Me.  138; 
Maryland,  Durham  v.  Rhodes,  23  Md.  233;  Gough  v.  Manning,  26 
Md.  347;  Massachusetts,  Upham  v.  Emerson,  119  Mass.  509;  Michi- 
gan, Tracy  v.  Murray,  40  Mich.  109;  Minnesota,  Washburn  v.  Van 
Steenwyk,  82  Minn.  336,  20  N.  W.  324;  Mississippi,  Wilson  v.  Cox, 
49  Miss.  538;  Missouri,  Dougherty  v.  Barnes,  64  Mo.  159;  Martien 
v.  Norris,  91  Mo.  465,  3  S.  W.  849;  New  Hampshire,  Copp  v.  Hersey, 
81  N.  H.  317;  Ohio,  Corry  v.  Lamb,  45  Ohio  St.  203,  12  N.  E.  660; 
Oregon,  Hill's  Ann.  Laws,  §  2971;  Pennsylvania,  Waterson's  Appeal, 
95  Pa.  312;  Rhode  Island,  Chapin  v.  Hill,  1  R,  I.  446;  Tennessee, 
Jarman  v.  Jarman's  Heirs,  4  Lea,  671;  Vermont,  Hathaway  v. 
Hathaway,  44  Tt  658;  Wisconsin,  Wilber  v.  Wilber,  52  Wis.  298, 
9  N.  W.  163. 

»  Vernon  v.  Vernon,  53  N.  T.  351. 

10  Konvalinka  v.  Schlegel,  104  N.  Y.  125,  9  N.  E.  868,  58  Am.  Rep. 
494;  Ellis  v.  Lewis,  3  Hare,  310,  where  the  vice  chancellor  said:     "I 
take  the  law  to  be  clearly  settled  at  this  day  that  a  devise  of  lands 
eo  nomine  upon  trusts  for  sale,  or  a  devise  of  lands  eo  nomine  to  a 
devisee  beneficially  does  not  per  se  express  an  intention  to  devise 
the  lands  otherwise  than  subject  to  its  legal  Incidents,  dower  in- 
cluded." 

11  Gibson  v.  Gibson,  17  Eng.  Law  &  Eq.  340;  Bending  v.  Bending, 
8  Kay  &  J.  257;  In  re  Frazer,  92  N.  Y.  239. 

ia  Loucks  v.  Churchill,  7  Cow.  (N.  Y.)  287,  17  Am.  Dec.  514;  Le- 
EATON.EQ—  18 


194  ELECTION.  (Ch.  8 

sistent  with  her  right  of  dower  to  produce  such  result.  This 
rule  is  operative  even  if  the  devise  to  others  is  specific,  and 
not  general,18  unless,  as  has  been  held  in  some  cases,  the 
specific  devise  is  to  one  whom  the  testator  is  morally  bound 
to  support,  and  such  devise  is  not  more  than  enough  to  sup- 
port such  person,  in  which  case  the  widow  may  be  put  to 
her  election.14  And  in  certain  English  cases  it  was  held 
that  a  devise  of  a  house  or  farm,  in  terms  showing  that  i 
personal  use  and  occupation  thereof  by  the  devisee  was  in- 
tended, is  inconsistent  with  the  widow's  right  of  dower  there- 
in, and  that  she  must  elect  between  her  dower  and  other 
benefits  conferred  on  her  by  the  will.16  There  is  also  a  line 
of  English  cases  to  the  effect  that,  where  a  testator  has  de- 
vised lands  and  other  property  to  his  widow  and  others  in 
equal  shares,  the  widow  must  elect,  upon  the  theory  that,  if 
the  widow  took  her  dower  and  what  was  given  her  by  the 
will,  it  would  be  inconsistent  with  that  equality  which  the 
testator,  by  his  disposition  of  his  property,  clearly  intend- 
ed.18 This  principle  has  been  frequently  criticised  and 
doubted.17  A  devise  or  bequest  to  a  widow  for  life,  with  a 
devise  of  the  rest  of  the  lands  of  the  testator  to  others,  does 
not  create  the  necessity  of  an  election  on  the  part  of  the 
widow.** 


fevre  v.  Lefevre,  59  N.  T.  435;  Bull  v.  Church,  5  Hill  (N.  Y.)  207; 
Brown  v.  Brown,  55  N.  H.  106.  In  the  case  of  Loucks  v.  Churchill, 
the  testator  devised  to  his  widow  his  dwelling  house  and  garden, 
and  bequeathed  her  certain  personal  effects.  He  devised  his  farm 
to  his  sons.  It  was  held  that  the  widow  was  entitled  to  dower  In 
the  farm,  as  well  as  to  the  devise  and  legacy  given  by  the  will. 

i»  Loucks  v.  Churchill,  7  Cow.  (N.  Y.)  287,  17  Am.  Dec.  514;  Ken- 
nedy v.  Nedrow,  1  Ball.  415,  418,  1  L.  Ed.  202. 

i«  Ailing  v.  Chatfleld,  42  Conn.  276;  Herbert  v.  Wren,  7  Cranch, 
370,  378,  3  L.  Ed.  374. 

iBMiall  v.  Brain,  4  Miuld.  119;  Butcher  v.  Kemp,  5  Madd.  61; 
Roadley  v.  Dixon,  3  Russ.  192, 

i«  Chalmers  T.  Stovlll,  2  Ves.  &  B.  222;  Dlckson  v.  Robinson,  1 
Jac.  503;  Roberts  v.  Smith,  1  Sim.  &  S.  513;  Reynolds  v.  Torin,  1 
Russ.  129;  Goodfellow  v.  Goodfellow,  18  Beav.  356. 

11  Ellis  v.  Lewis,  3  Hare,  315,  where  It  was  stated  that,  In  any 
event,  the  testator  cannot  be  presumed  to  have  intended  to  dispose 
of  more  than  he  possessed,  and  that  the  equal  division  should  only 
be  made  after  the  widow's  dower  had  been  assigned.  Bending  v. 
Bending,  3  Kay  &  J.  261;  In  re  Hatch's  Estate,  62  Vt  300,  18  All. 
814, 

i«  10  Bull  v.  Church,  5  Hill  (N.  Y.)  207;  Church  r.  Bull,  2  Denlo 


§   71)  MANNER    OF    MAKING    AN    ELECTION.  195 


MANNER  OF  MAKING  AN  ELECTION. 

71.  An  election  may  be  either 

(a)  Express, — by  some  positive  and  unequivocal 

declaration  by  the  person  required  to  elect, 
showing  the  intention  and  fact  of  election. 

(b)  Implied, — by  such  acts  of  acceptance  and  ac- 

quiescence as  evince  an  intention  of  the  per- 
son required  to  elect  to  take  one  gift  and 
reject  the  other. 

In  the  case  of  an  express  election  no  question  can  arise. 
The  election  becomes  absolute  upon  the  positive  and  un- 
equivocal declaration  of  the  party  required  to  elect.  An  in- 
stance of  an  express  election  is  where  the  party  required  to 
elect  executes  a  written  instrument  declaring  which  one  of 
two  properties  he  will  take. 

The  question  as  to  what  constitutes  an  implied  election  is 
often  one  difficult  of  solution.  But  few  principles  can  be 
enunciated  which  will  be  of  value  in  its  determination.  It 
is,  for  the  most  part,  a  question  of  fact,  which  must  be  de- 
termined, like  any  other  question  of  fact,  upon  the  circum- 
stances of  each  particular  case.  Election  may  be  inferred 
from  the  conduct  of  the  party,  his  acts,  omissions,  and  his 
mode  of  dealing  with  the  property.  It  may  be  necessary 
to  inquire  into  the  circumstances  of  the  property  against 
which  the  party  is  required  to  elect;  for,  if  the  party  con- 
tinues to  receive  the  rents  of  both  properties,  or  refuses  to 
receive  the  rents  of  either,  there  are  no  facts  on  which  an 
implied  election  can  be  based.1  But  if  the  party  assume  any 

(N.  Y.)  430,  43  Am.  Dec.  754,— a  testator  devised  all  his  real  and  per- 
sonal property  to  bis  wife  during  her  life,  or  so  long  as  she  should 
remain  his  widow,  and  after  her  decease  or  remarriage  to  his  chil- 
dren; and  the  widow,  having  survived  him,  entered  and  occupied 
under  the  will  for  several  years,  and  then  remarried.  It  was  held 
that  she  was  entitled  to  dower.  See,  also,  Lewis  v.  Smith,  9  N.  Y. 
502,  61  Am.  Dec.  706;  Metteer  v.  Wiley,  34  Iowa,  214;  Howard  v. 
Watson,  76  Iowa,  229,  41  N.  W.  45. 

§  71.  i  Padbury  v.  Clark,  2  Macn.  &  G.  298;  Spread  v.  Morgan,  11 
H.  L.  Cas.  588;  Dillon  v.  Parker,  1  Swanst.  359,  381,  382;  Whitridge 
Y.  Parkhurst,  20  Md.  62,  72, 


196  ELECTION.  (Ch.    8 

of  the  rights  of  ownership  over  one  of  the  properties,  and 
utterly  disregards  the  other,  he  will  be  presumed  to  have 
made  an  election,  and  will  be  bound  thereby,  unless  it  ap- 
pear that  he  had  no  knowledge  of  his  right  to  elect,  or  had 
no  conception  of  the  value  of  the  other  property.2  Before 
any  presumption  of  an  election  can  arise,  it  must  be  shown 
that  the  party  was  cognizant  of  this  right  before  acting  or 
acquiescing.8  Any  act,  to  be  binding  upon  a  person,  must 
be  done  with  the  intention  of  constituting  an  election.4  It 
seems  to  be  generally  held  that,  when  a  widow  is  put  to  an 
election  between  a  testamentary  provision  in  her  favor  and 
her  dower,  any  unequivocal  act  of  dealing  with  the  prop- 
erty given  her  by  the  will,  or  the  assumption  of  any  right  of 
ownership,  with  full  knowledge  of  her  right  to  elect,  un- 
affected by  any  mistaken  notion  as  to  the  value  and  condi- 
tion of  the  property,  will  be  deemed  an  election  to  take  un- 
der the  will.8 

ASCERTAINMENT  OF  VALUES. 

72.  Persons  required  to  elect  are  entitled  to  ascer- 
tain the  respective  values  of  their  own  prop- 
erty and  of  that  conferred  on  them,  and  may 
commence  an  action  to  have  all  requisite  ac- 
counts taken.1 

It  follows  from  this  rule  that  an  election  made  under  r 
mistake  of  facts  as  to  the  value  of  the  property  or  its  con- 
dition, is  not  binding,  and  is  subject  to  revocation.*  As,  for 

»  Penn  v.  Guggenheimer,  76  Va.  839;  Watson  v.  Watson,  128 
Mass.  152. 

»  Story,  Eq.  Jur.  §  1097;  Dillon  v.  Parker,  1  Swanst.  359,  381;  Ed- 
wards v.  Morgan,  13  Price,  782. 

*  Stratford  v.  Powell,  1  Ball  &  B.  1;  Dillon  v.  Parker,  1  Swanst 
859,  380,  387. 

•  Pom.  Eq.  Jur.  J  515;  Snell,  Eq.  Jur.  p.  219;  O'Drlscoll  v.  Koger, 
2  Desaus.  (S.  O.)  296. 

§  72.  i  Dillon  v.  Parker,  1  Swanst.  359,  381;  Buttrlcke  v.  Brod- 
hurst,  3  Brown,  Ch.  88. 

« Pusey  v.  Desbrouvrle,  8  P.  Wms.  315;  Wake  v.  Wake,  3 
Brown,  Ch.  255;  Adslt  v.  Adslt,  2  Johns.  Ch.  (N.  Y.)  448,  451,  7  Am. 
Deo.  f>39;  Pratt  v.  Douglas,  38  N.  J.  Eq.  539;  Elbert  v.  O'Nell,  102 
Pa.  302;  In  re  Woodburn's  Estate,  138  Pa,  606,  21  Att  16. 


§   73)  ELECTION    BY    PERSONS   UNDER   DISABILITIES.  197 

an  example,  where  a  widow  who  had  elected  to  take  a  legacy 
instead  of  asserting  her  claim  of  dower,  under  the  erroneous 
belief  that  her  husband's  estate  was  solvent,  was  permitted, 
on  discovering  that  the  estate  was  insolvent,  to  revoke  her 
election  and  claim  her  dower.8  And  where  a  widow  made 
her  election  under  a  mistake  as  to  her  rights  under  the  will 
and  as  to  the  amount  which  she  would  receive  from  the  tes- 
tamentary provision  in  her  favor,  it  was  held  that  a  court  of 
equity  might  permit  a  revocation  of  her  election,  where  the 
rights  of  other  parties  would  not  be  prejudiced.4  In  many 
of  the  states,  statutes  have  been  enacted  requiring  widows 
to  elect  within  a  prescribed  period,  or  be  deemed  to  have 
elected,  which  must  necessarily  affect  the  operation  of  this 
rule.8 


ELECTION  BY  PERSONS  UNDER  DISABILITIES. 

73.  A  married  woman  may  elect  without  the  inter- 
vention of  the  court.  In  the  case  of  an  infant 
the  election  may  be  deferred  until  he  becomes 
of  age;  but  the  ordinary  practice  is  for  the 
court  to  judicially  determine  whether  it  is 
for  the  infant's  advantage  to  make  an  elec- 
tion, and  what  course  is  more  beneficial. 
In  the  case  of  a  lunatic,  the  court  will  elect 
for  him,  after  judicially  ascertaining  what 
action  is  most  advantageous  to  him. 

The  question  of  the  right  of  a  married  woman  to  elect  can 
be  of  no  importance  except  in  those  states  where  the  com- 
mon-law disabilities  of  married  women  still  exist.  Where 
the  husband's  interests  in  his  wife's  property  are  abrogated 
by  statute,  and  the  wife  is  clothed  with  all  the  capacities  of 
a  single  woman,  she  must  also  possess  the  ability  to  elect 
in  her  own  behalf.  Independent  of  statute,  it  seems  to  be 

»  Dabney  v.  Bailey,  42  Ga.  521. 

« Macknet  v.  Macknet,  29  N.  J.  Eq.  54.  And  see,  also,  In  re 
Evans*  Appeal,  51  Conn.  435. 

B  Akin  v.  Kellogg,  119  N.  Y.  441,  23  N.  E.  1046;  Cox  v.  Rogers, 
If  Pa.  100. 


198  ELECTION.  (Ch.  8 

the  rule  that  a  married  woman  may  elect  so  as  to  affect  her 
interest  in  both  real  and  personal  property.1  An  infant  can- 
not elect  for  himself.  If  the  infant  may  be  compelled  to 
elect,  the  period  of  election  is,  under  some  circumstances, 
deferred  until  after  he  becomes  of  age.2  But  in  most  cases 
the  court  will  institute  an  inquiry  to  determine  what  would 
be  most  beneficial  to  the  infant.1 

The  committee  of  a  lunatic  cannot  elect  for  the  lunatic. 
It  is  the  duty  of  the  committee  to  apply  to  the  court  for 
leave  to  elect,  and  permission  will  not  be  granted  except 
upon  a  due  consideration  of  the  advantages  and  disadvan- 
tages resulting  to  the  lunatic  from  the  choice.*  In  direct- 
ing an  election  the  court  will  generally  select  the  more  val- 
uable property,  but  may  exercise  a  sound  discretion.  Ac- 
cordingly, where  the  testator's  widow  had  been  hopelessly 
insane  for  many  years,  the  court  elected  to  take  a  testa- 
mentary provision  ample  for  her  support,  although  her  stat- 
utory interest  in  her  husband's  estate  was  much  more  val- 
uable ;  being  controlled  by  the  consideration  that  a  contrary 
election  would  greatly  interfere  with  the  entire  scheme  of 
the  will,  which  contained  many  bequests  for  public  and  char- 
itable purposes.* 

§  73.  i  Robinson  v.  Buck,  71  Pa.  386;  Tiernan  v.  Roland,  15  Pa. 
430,  452;  Robertson  v.  Stephens.  36  N.  C.  247,  251;  McQueen  v.  Mc- 
Queen, 55  N.  C.  16,  62  Am.  Dec.  205. 

2  Streatfleld  v.  Streatfield,  Cas.  t  Talb.  176;  Id.,  1  White  &  T.  Lead. 
Cas.  Eq.  (Text-Book  Series)  p.  398;  Boughton  v.  Boughton,  2  Ves.  Sr. 
J2;  Bor  v.  Bor,  3  Brown,  Parl.  Cas.  (Toml.  Ed.)  173. 

»  Chetwynd  v.  Fleetwood,  1  Brown,  Parl.  Oas.  (Toml.  Ed.)  300; 
Goodwyn  v.  Goodwyn,  1  Ves.  Sr.  228;  Ebrington  v.  Ebrington,  5 
Madd.  117;  Brown  v.  Brown,  L.  R.  2  Eq.  481;  Bigland  v.  Huddle- 
ston,  3  Brown,  Ch.  285;  McQueen  v.  McQueen,  55  N.  C.  16,  62  Am. 
Dec.  205. 

*  Kennedy  v.  Johnson,  65  Pa.  451;  Washburn  v.  Van  Steenwyk,  32 
Minn.  336,  20  N.  W.  324;  Penhallow  v.  KlmbaJl,  61  N.  H.  596;  State 
v.  Ueland,  30  Minn.  277,  15  N.  W.  245. 

»  Van  Steenwyck  v.  Washburn,  59  Wls.  483,  509,  17  N.  W.  289.  It 
has,  however,  been  held  that  the  court  will  not  regard  the  Interests 
of  the  heirs  In  making  such  an  election.  Penhallow  r.  Klmball,  61 
N.  H.  596. 


§   75)  EFFECT   OF    ELECTION.  199 


TIME  WHEN  ELECTION  MUST  BE  MADE. 

74.  Independent  of  statutes,  there  can  be  no  limit 
to  the  time  within  which  an  election  can  be 
made,  unless  by  the  delay  third  persons  have 
acquired  rights  in  the  property  subjected  to 
an  election,  or  injury  would  otherwise  result 
to  third  persons.1 

It  is  almost  impossible  to  lay  down  a  general  rule  as  to 
the  length  of  time  which  must  elapse  after  the  acts  done 
from  which  an  election  is  usually  implied,  to  bind  the  party 
required  to  elect,  and  prevent  him  from  setting  up  the  plea 
of  ignorance  of  his  right.2  The  rule  as  above  stated  is  gen- 
erally applied  unless  statutes  are  in  force  which  modify  or 
abrogate  it.  In  many  of  the  states  such  statutes  exist,  es- 
pecially in  regard  to  an  election  by  a  widow  between  her 
dower  and  a  testamentary  provision. 


EFFECT  OF  ELECTION. 

76.  An  election  once  made,  by  a  party  bound  to 
elect,  and  under  no  misapprehension  as  to 
his  rights,  and  with  knowledge  of  the  value 
of  the  properties  to  be  affected  by  such  elec- 
tion, is  irrevocable,  and  binds  the  party 
making  it,  and  all  persons  claiming  under 
him,1  and  also  all  donees  under  the  instru- 
ment whose  rights  are  directly  affected  by 
tne  election.2 

§  74.  i  Pom.  Eq.  Jur.  §  513;  Dillon  v.  Parker,  1  Swanst.  359,  381, 
380;  Wake  v.  Wake,  1  Ves.  Jr.  335;  Tlbblts  v.  Tibblts,  19  Ves.  656. 

2  Snell,  Eq.  p.  219. 

§  75.  i  Earl  of  Northumberland  v.  Earl  of  Aylesford,  Amb.  540; 
Dewar  v.  Maltland,  L.  R.  2  Eq.  834;  Tomkyns  v.  Ladbroke,  2  Ves. 
Sr.  593;  Sopwith  v.  Maughan,  30  Beav.  235,  239;  Whitley  v.  Whltley, 
31  Beav.  173;  Cory's  Ex'r  v.  Cory,  37  N.  J.  Eq.  198. 

»  Pom.  Eq.  Jur.  §  517. 


200  ELECTION.  (Ch.  8 

Where  a  person  bound  to  elect  dies  before  doing  so,  and 
his  next  of  kin  are  entitled  to  elect,  each  of  them  has  a  sep- 
arate right  of  election,  and  an  election  by  any  of  them  does 
not  bind  the  others.8  And,  if  a  life  estate  is  given  to  the 
party  bound  to  elect,  an  election  by  him  does  not  bind  or 
affect  the  rights  of  the  remainder-man.4  And  where,  by 
virtue  of  an  election  by  a  widow  to  take  under  a  will,  an 
estate  has  become  vested  in  another  devisee,  the  latter  can- 
not defeat  the  right  of  his  creditors  to  subject  that  estate  to 
their  debts  by  disclaiming  in  favor  of  the  widow,  so  as  to 
enable  her  to  hold  the  estate  as  her  dower.' 

•  Fytche  v.  Fytche,  L.  R.  7  Eq.  494. 

«  Ward  v.  Baugb,  4  Yes.  623;   Long  r.  Long,  5  Yes.  440. 

•  Perm  v.  Guggenheimer,  76  Va,  839. 


§   76)  SATISFACTION    AND   PERFORMANCE.  201 

CHAPTER  IX. 

SATISFACTION  AND  PERFORMANCE. 

76.    Satisfaction— Definition. 
77-78.  Adrnissibility  of  Parol  or  Extrinsic  Evidence. 

79.  Application  of  Doctrine. 

80.  Satisfaction  of  Debts  by  Legacies. 

81.  When  Presumption  of  Satisfaction  Will  Not  Operate. 

82.  Declared  Intention  of  Satisfaction  of  Debt 

83.  Debt  Owing  to  Wife  or  Child. 

84.  Legacy  by  a  Creditor  to  His  Debtor. 
85-88.  Satisfaction  of  Legacies  by  Subsequent  Legacies. 

89.  Satisfaction  of  Legacies  by  Portions  or  Advancements. 

90.  Person  in  Loco  Parentls. 

91.  Presumption  in  Favor  of  Ademption. 

92.  When  Satisfaction  must  be  Expressed. 

93.  Satisfaction  of  Portions  by  Legacies. 

94.  Performance — Doctrine  Stated. 

95.  Application  of  Doctrine. 

SATISFACTION— DEFINITION. 

76.  Satisfaction  is  the  donation  of  a  thing  with  the 
intention  that  it  is  to  be  taken  either  wholly 
or  in  part  in  extinguishment  of  some  prior 
claim  of  the  donee.1 

The  cases  in  which  the  doctrine  of  satisfaction  has  been 
applied  have,  for  the  most  part,  arisen  under  wills.  The 
principle  underlying  the  doctrine  is  similar  to  the  one  which 
underlies  the  doctrine  of  election,  namely,  that,  when  the 
donor  makes  a  gift  with  the  express  or  implied  intention 
that  it  shall  be  taken  in  extinguishment  of  some  prior  claim 
of  the  donee,  the  latter  cannot  accept  the  gift,  and  at  the 
same  time  enforce  his  claim  against  the  donor.2  To  war- 
rant the  application  of  the  doctrine,  there  must  be  some- 
thing to  show  that  it  was  the  donor's  intention  that  the  gift 

1  76.     i  Chlchester  v.  Coventry,  L.  R.  2  H.  L.  71,  95;   Id.,  2  White 
&  T.  Lead.  Oas.  Eq.  (Gth  Ed.)  p.  382  (notes  to  Chancey's  Case);  Tus- 
saud  v.  Tussaud,  9  Ch.  Dlv.  363,  1  Bretts,  Lead.  Oas.  Eq.  255. 

2  Pom.  Eq.  Jur.  §  520. 


202  SATISFACTION    AND    PERFORMANCE.  (Ch.   9 

should  be  in  satisfaction  of  the  prior  obligation.  When  this 
intention  is  expressly  declared,  no  difficulty  can  arise;  for, 
where  the  subsequent  gift  is  expressly  bestowed  in  extin- 
guishment of  the  prior  demand,  the  donee  clearly  cannot 
claim  both.8  But  in  many  cases  this  intention  has  to  be  im- 
plied from  the  circumstances,  and  then  considerable  diffi- 
culty is  often  experienced. 


SAME— ADMISSIBILITY  OP  PAROL  OB  EXTRINSIC 
EVIDENCE. 

77.  Where  the    gift   relied   on   to    extinguish  the 

prior  claim  is  bestowed  otherwise  than  by 
writing,  verbal  evidence,  including  the  don- 
or's contemporaneous  declarations,  is  admis- 
sible to  show  the  true  nature  and  effect  of 
the  whole  transaction.1 

78.  Where  the  subsequent  gift  is  evidenced  by  a 

written  instrument  which  raises  a  presump- 
tion that  the  gift  is  in  satisfaction  of  the 
prior  claim,  parol  evidence  is  admissible  to 
rebut  or  sustain  the  presumption ;  but, 
where  the  instrument  raises  no  such  pre- 
sumption, parol  evidence  is  not  admissible 
to  raise  the  presumption,  and  to  show  the 
intention  of  the  parties.2 

A  subsequent  gift  can  only  be  bestowed  by  the  acts  and 
words  of  the  donor  in  the  single  case  of  a  prior  legacy 

'    »  Hardlngham  v.  Thomas,  2  Drew.  353. 

8§  77,  78.  i  Pom.  Eq.  Jur.  576;  Kirk  v.  Eddowes,  3  Hare,  509; 
Sims  v.  Sims,  10  N.  J.  Eq.  158,  1G2,  1G3;  Jones  v.  Mason,  5  Rand. 
(Va.)  577,  16  Am.  Dec.  461;  Paine  v.  Parsons,  14  Pick.  (Mass.)  318; 
Richardson  v.  Eveland,  126  111.  37,  18  N.  E.  308, 1  L.  R.  A.  203;  Lang- 
don  v.  Aster's  Ex'rs,  16  N.  Y.  9,  34. 

2  Tussaud  v.  Tussaud,  9  Ch.  Dlv.  3C3,  1  Bretts,  Lead.  Gas.  Eq. 
255;  Hall  v.  Hill,  1  Dru.  &  War.  94;  Kirk  v.  Eddowes,  3  Hare, 
609;  Gllllam  v.  Chancellor,  43  Miss.  437,  5  Am.  Rep.  498;  Cloud  v. 
Clinklubonrd's  Ex'rs,  8  B.  Mon.  (Ky.)  397,  48  Am.  Dec.  397;  Reyn- 
olds v.  Robinson,  82  N.  Y.  103,  37  Am.  Rep.  555. 


§    79)  SATISFACTION    AND    PERFORMANCE.  203 

sought  to  be  extinguished  by  a  subsequent  advancement, 
payment,  or  gift.  In  such  case,  the  subsequent  transaction 
being  entirely  parol,  the  fact  of  the  gift  itself  must  be  proved 
by  verbal  evidence,  and  to  show  the  nature  and  effect  of 
such  transaction  verbal  evidence  must  be  solely  relied  up- 
on. It  follows,  therefore,  that  the  intention  of  the  donor 
can  only  be  ascertained  by  the  admission  of  verbal  evidence. 
Nor,  in  such  case,  does  the  admission  of  verbal  evidence  af- 
fect the  prior  will.  Such  evidence  cannot  add  to  or  con- 
tradict the  terms  of  the  will,  because  the  nature  and  effect 
of  the  subsequent  gift,  however  it  may  be  determined,  do 
not  affect  the  validity  of  the  prior  legacy.8 

Where,  under  the  rules  of  law,  a  written  donation  indi- 
cates no  intention  to  satisfy  the  prior  claim  of  the  donee, 
parol  evidence  is  not  admissible  to  show  such  intent,  since 
such  evidence  would  alter  and  vary  the  terms  of  the  instru- 
ment ;  but,  where  a  presumption  of  satisfaction  arises  from 
the  instrument  itself,  the  admission  of  parol  evidence  to 
show  whether  this  presumption  is  well  or  ill  founded  does 
not  violate  the  rule  against  the  alteration  of  written  instru- 
ments by  parol  evidence.*  It  should  be  noted,  however, 
that  questions  as  to  the  admissibility  of  extrinsic  evidence  as 
to  the  donor's  intention  are,  of  necessity,  confined  to  the 
subsequent  gift,  and  not  to  the  prior  obligation,  for  that 
stands  admitted,  and  the  only  inquiry  is  whether  the  subse- 
quent gift  was  intended  by  the  donor  as  a  satisfaction.' 

SAME— APPLICATION  OF  DOCTRINE. 

79.  There   are  four  classes  of  cases  to  which  the 
doctrine  of  satisfaction  may  be  applied. 

(a)  Satisfaction  of  debts  by  legacies. 

(b)  Satisfaction   of   legacies    by  subsequent  leg- 

acies. 

•  Kirk  v.   Eddowes,  3  Hare,   509;    Monck  T.   Monck,    1  Ball  & 
B.  298;  Rose  well  v.  Bennett,  3  Atk.  77;  Powel  v.  Cleaver,  2  Brown, 
Oh.  499;    Richards  v.  Humphreys,  15  Pick.   (Mass.)  133;    Hine  v. 
Hine,  39  Barb.  (N.  Y.)  507;    Van  Houten  v.  Post,  33  N.  J.  Eq.  344; 
McDearman  v.  Hodnett,  83  Va.  281,  2  S.  E.  643;   Frey  v.  Heydt,  116 
Pa.  601,  11  Atl.  535. 

•  Hall  v.  Hill,  1  Dru.  &  War.  94;  Kirk  v.  Eddowes,  3  Hare,  509. 

•  Hall  v.  Hill,  1  Dru.  &  War.  94,  133. 


204  SATISFACTION    AND   PERFORMANCE.  (Ch.  9 

(c)  Satisfaction   of  legacies   by  portions   or   ad- 

vancements. 

(d)  Satisfactions  of  portions  of  legacies.1 

Mr.  Haynes  divides  the  subject  under  two  heads :  "First, 
when  a  father,  or  person  filling  the  place  of  a  parent,  makes 
a  double  provision  for  a  child  or  person  standing  towards  him 
in  a  filial  relation ;  secondly,  when  a  debtor  confers,  by  will 
or  otherwise,  a  pecuniary  benefit  on  his  creditor."  a  The 
first  subdivision,  as  above  stated  in  the  black-letter  text,  is 
included  under  the  second  head  of  the  classification  used  by 
Mr.  Haynes.  The  other  subdivisions  are  all  embraced  in 
the  first  head  of  such  classification. 


SATISFACTION  OP  DEBTS  BY  LEGACIES. 

80.  Where  a  testator,  indebted  to  another  in  a  sum 
of  money,  gives  to  him  a  sum  equal  to  or 
greater  than  the  debt,  without  taking  notice 
of  the  debt,  the  legacy  is  presumed  to  be  in 
satisfaction  of  the  debt.1 

This  rule  is  founded  on  the  maxim,  "Debitor  non  prae- 
sumitur  donare,"  and  it  may  also  be  observed  that  it  is  in 
accordance  with  the  maxim  that  equity  imputes  an  intent  to 
fulfill  an  obligation  upon  the  theory  that  a  legacy  to  a  cred- 

{  79.  *  The  classification  adopted  In  the  text  Is  that  used  by 
Mr.  Snell  and  Mr.  Pomeroy,  and  seems  to  be  the  most  useful  and 
best  conceived  for  a  proper  discussion  of  the  subject.  Snell,  Eq.  p. 
230;  Pom.  Eq.  Jur.  §  526. 

»  Haynes,  Eq.  (5th  Ed.)  p.  291.  Smith.  Eq.  (15th  Ed.)  p.  345,  where 
the  classification  is  as  follows:  "Equitable  questions  of  satisfaction 
usually  arise  in  three  classes  of  cases:  (1)  In  cases  of  portions  se- 
cured by  a  marriage  settlement;  (2)  In  cases  of  portions  given  by  a 
will,  and  an  advancement  of  the  donee  afterwards  In  the  testator's 
lifetime;  (3)  In  cases  of  legacies  to  creditors." 

§  80.  i  The  rule  as  laid  down,  Talbott  v.  Duke  of  Shrewsbury, 
Free.  Ch.  394;  Id.,  2  White  &  T.  Lead.  Gas.  Eq.  (Text-Book  Series) 
pt.  1,  p.  378,— is  as  follows:  "If  one,  being  indebted  to  another  in  a 
sum  of  money,  does,  by  his  will,  give  him  a  sum  of  money  as  great 
as  or  greater  than  the  debt,  without  taking  any  notice  at  all  of  the 
debt,  this  shall,  nevertheless,  be  in  satisfaction  of  the  debt,  so  that 
they  shall  not  have  both  the  debt  and  the  legacy." 


§   81)  SATISFACTION    OF    DEBTS    BY    LEGACIES.  205 

itor  must  have  been  intended  in  satisfaction  of  the  debt 
which  the  testator  was  under  a  legal  obligation  to  pay.  A 
testator  is  presumed  to  be  just  before  he  is  generous.2  It 
seems  probable  that  this  rule  is  derived  from  the  civil  law, 
where  a  similar  proposition  is  laid  down,  but  with -limita- 
tions and  qualifications  which  materially  differ  from  those 
recognized  in  equity  jurisprudence, — as,  where  the  debt  was 
absolutely  due,  and  the  sum  of  each  was  the  same,  it  was 
deemed  a  satisfaction;  but,  if  there  was  a  difference  in  the 
amount,  or  even  in  the  time  of  payment,  there  could  be  no 
satisfaction.8  It  will  be  noticed  that  in  equity  these  limi- 
tations are  not  closely  followed,  although  they  have  not  been 
without  their  influence.  While  this  rule  is  now  universally 
recognized  in  equity,  and  is  very  generally  applied,  it  is  not 
without  its  limitations  and  qualifications.  The  following 
general  principles  may  be  stated  as  affecting  the  operation 
of  the  above  rule : 


SAME— WHEN  PRESUMPTION  OP  SATISFACTION 
WILL  NOT  OPERATE. 

81.  Equity  will  lay  hold  of  slight  circumstances  as 
indicating  an  intention  that  the  legacy  shall 
not  go  as  a  satisfaction,1  and  therefore  it 
has  been  laid  down  that  the  presumption 
of  satisfaction  will  not  prevail: 

(a)  Where  the  legacy  is  of  less  amount  than  the 

debt,  even  pro  tanto.8 

(b)  Where  the  legacy  and  debt  are  of  a  different 

nature   either  with  respect  to  the  subjects 

•  Story,  Eq.  Jur.  §  1118. 

•  Poth.  Pandects,  lib.  34,  tit  3,  notes  30-34. 

§  81.  i  Richardson  v.  Greese,  3  Atk.  65;  Gllllngs  r.  Fletcher,  38 
Ch.  Div.  373;  Thynne  v.  Earl  of  Glengall,  2  H.  L.  Cas.  153;  Smith  v. 
Smith,  1  Allen  (Mass.)  129;  Gilliarn  v.  Brown,  43  Miss.  641;  Strong 
v.  Williams,  12  Mass.  391;  Deickman  v.  Arndt,  49  N.  J.  Eq.  106,  22 
Atl.  799;  Eaton  v.  Ben  ton,  2  Hill  (N.  Y.)  576. 

2  Eastwood  v.  Vlnke,  2  P.  Wms.  617;  Graham  v.  Graham,  1  Ves. 
8r.  263;  Atkinson  v.  Webb,  2  Vern.  478;  Strong  v.  Williams,  12 
Mass.  391,  7  Am.  Dec.  81;  Eaton  v.  Benton,  2  Hill  (N.  Y.)  576. 


206  SATISFACTION    AND    PERFORMANCE.  (Ch.   9 

themselves  or  with  respect  to  the  interest 
given.3 

(c)  Where  the   legacy  is  payable  at  a  different 

time,    so    as    not   to  be  equally   advanta- 
0  geous  to  the  legatee  as  the  payment  of  his 
debt.* 

(d)  Where  the   debt  was  contracted  subsequent 

to  the  making  of  the  will.8 

(e)  Where  the  legacy  is  contingent  or  uncertain.' 

(f)  Where  the   testator   expressly    directs   that 

debts  and  legacies  shall  be  paid.7 

(g)  Where   testator  states  that  the  legacy  is  be- 

queathed   for    some   particular   motive    or 
reason/ 

It  was  held  by  the  Roman  law  that  a  legacy  may  be  less 
in  any  one  of  four  ways, — in  amount,  in  convenience  of 
place,  in  time,  and  in  quality."  The  application  of  such  a 
principle  to  determine  the  presumption  of  satisfaction  of  a 
debt  by  a  legacy  would  dispose  of  nearly  all  the  cases  aris- 
ing under  the  above  propositions.  The  existence  of  so 
many  conditions  and  circumstances  under  which  the  pre- 

»  Alleyn  v.  Alleyn,  2  Ves.  Sr.  37;  Eastwood  v.  Vinke,  2  P.  Wms. 
614;  Fourdrin  v.  Gowdey,  3  Mylne  &  K.  409;  Fairer  v.  Park,  3  Ch. 
Dlv.  309;  Cloud  v.  Clinklnbeard's  Ex'rs,  8  B.  Mon.  (Ky.)  397,  48  Am. 
Dec.  397. 

*  Nicholls  v.  Judson,  2  Atk.  300;  Hales  v.  Darell,  3  Beav.  324,  332; 
Charlton  v.  West,  30  Beav.  124,  127;   Van  Riper  v.  Van  Riper,  2  N. 
J.  Eq.  1.    But,  where  the  legacy  is  payable  before  the  debt  becomes 
due,  satisfaction  is  presumed.    Wathen  v.  Smith,  4  Madd.  325. 

»  Cranmer's  Case,  2  Salk.  508;  Heisler  v.  Sharp's  Ex'rs,  44  N.  J. 
Eq.  167,  14  Atl.  G24;  Sullivan  v.  Latimer,  38  S.  C.  158,  17  S.  E.  701. 

•  Barret  v.  Beckford,  1  Ves.  Sr.  519;  Byrne  v.  Byrne,  3  Serg.  &  R. 
(Pa.)  54,  8  Am.  Dec.  641;   Dey  v.  Williams,  22  N.  C.  66. 

i  Chancey's  Case,  1  P.  Wms.  408;  Id.,  2  White  &  T.  Lead.  Cas.  Eq. 
(Text-Book  Series)  pt  1,  p.  380;  Richardson  v.  Greese,  3  Atk.  65; 
Hales  v.  Darell,  3  Beav.  324,  332;  Jefferies  v.  Michell,  20  Beav.  15; 
Bradshaw  v.  Huish,  43  Ch.  Div.  262;  Strong  v.  Williams,  12  Mass. 
389,  7  Am.  Dec.  81. 

«  Charlton  v.  West,  30  Beav.  124;  Mathewg  v.  Mathews,  2  Ves.  Sr. 
635. 

»  Snell,  Eq.  p.  234. 


§   82)  SATISFACTION    OF   DEBTS    BY    LEGACIES.  207 

sumption  of  satisfaction  of  a  debt  by  a  legacy  will  not  pre- 
vail is  evidence  of  the  reluctance  of  the  courts  to  apply  the 
doctrine  to  such  cases,  and  shows  a  decided  leaning  to- 
wards construing  the  words  of  a  testator  in  granting  a  leg- 
acy as  an  intention  to  bestow  a  favor,  rather  than  as  to  ful- 
fill an  obligation.  Wherever  it  is  possible  for  the  courts  to 
find  a  ground,  in  the  facts  of  the  case,  for  a  presumption 
against  the  satisfaction  of  a  debt  by  a  legacy,  they  will  avail 
themselves  of  such  circumstances,  it  matters  not  how  slight 
the  circumstances,  or  how  insufficient  they  would  be  con- 
sidered in  other  cases  falling  under  the  doctrine  of  satisfac- 
tion.10 


SAME— DECLARED  INTENTION  OP  SATISFACTION 
OF  DEBT. 

82.  The  intention  of  the  testator  to  satisfy  a  debt 
by  a  legacy  may  be  declared  or  manifested. 

(a)  By  an  express  declaration  in  the  will. 

(b)  By  an  agreement  made  at  the  time  the  debt 

was  contracted. 

If  the  intention  of  the  testator  to  satisfy  the  debt  by  a 
legacy  can  be  clearly  shown,  no  presumption  can  arise  from 
the  circumstances  of  the  case  which  will  circumvent  or  per- 
vert that  intention.  If  the  testator  declares  in  his  will  that 
the  legacy  is  in  lieu  of  a  debt,  no  doubt  can  arise  as  to  his 
intention,  and  the  creditor  will  not  be  permitted  to  enforce 
his  debt,  and  take  the  legacy,  but  will  be  required  to  elect 
between  the  two.1  And,  if  the  legatee  has  rendered  some 
service  to  the  testator  under  an  understanding  or  agree- 
ment that  he  was  to  receive  no  pay  therefor  during  the  tes- 
tator's lifetime,  but  is  to  be  provided  for  in  the  testator's 
will,  the  testamentary  provision  will  be  deemed  a  satisfac- 
tion of  the  debt,  and  the  creditor  legatee  cannot  enforce  his 
claim  against  the  estate.1 

10  Tied.  Eq.  Jur.  §  157;  Eaton  Y.  Benton,  2  Hill  (N.  T.)  576. 

§  82.  i  Eaton  v.  Benton,  2  Hill  (N.  Y.)  576;  Williams  v.  Crary,  4 
Wend.  (N.  Y.)  443;  Van  Riper  v.  Van  Riper,  2  N.  J.  Eq.  1. 

2  Eaton  v.  Benton,  2  Hill  (N.  Y.)  576;  Patterson  v.  Patterson,  13 
Johns.  (N.  Y.)  379. 


208  SATISFACTION    AND    PERFORMANCE.  (,Ch.   9 


SAME— DEBT  OWING  TO  WIPE  OB  CHILD. 

83.  Where   the  legacy  is   given  to    the  testator's 

•wife  or  child,  to  whom  he  is  indebted,  the 
same  rule  applies  as  if  the  legacy  •were  given 
to  a  stranger. 

If  the  legacy  be  given  to  a  wife  or  child,  to  whom  the  tes- 
tator is  actually  indebted  in  an  ordinary  way,  no  different 
rule  or  principle  applies  from  that  in  the  case  of  a  legacy  to 
a  stranger.  The  presumption  of  satisfaction  will  exist  un- 
der the  same  circumstances,  and  may  be  rebutted  in  the  same 
manner,  as  if  the  parties  were  strangers  to  each  other.1 
But  where  a  parent  is  indebted  to  a  child,  and  makes  an 
advancement  to  the  child  of  an  amount  equal  to  or  exceed- 
ing the  debt,  it  will  be  deemed  prima  facie  as  a  satisfaction ; 
and  it  is  immaterial  what  the  circumstances  may  be  under 
which  the  advancement  was  made.1 

SAME— LEGACY  BY  A  CBEDITOB  TO  HIS  DEBTOB. 

% 

84.  A  legacy  from  a  creditor  to  his  debtor  has  no 

effect  upon  the  indebtedness,  unless  accom- 
panied by  express  declarations,  either  in  the 
will  or  -without  it,  showing  a  special  intent 
to  discharge  or  release  the  debt. 

The  doctrine  of  a  legacy  operating  as  payment  of  a  debt 
applies  only  where  the  testator  is  the  debtor  and  the  leg- 
atee is  the  creditor.1  No  presumption  of  satisfaction  can 
arise  which  would  enable  the  legatee  to  receive  the  amount 
bequeathed  to  him,  and  at  the  same  time  be  relieved  from 
the  payment  of  the  debt  which  he  owed  to  the  testator.  The 

i  83.  i  Tolson  v.  Collins,  4  Ves.  483;  Stocken  v.  Stocken,  4  Slin. 
152;  Fowler  v.  Fowler,  3  P.  Wms.  353;  Cole  v.  Wlllard,  25  Beav. 
568;  Gilliam  v.  Chancellor,  43  Miss.  437,  5  Am.  Rep.  498;  Guignnrd 
r.  May  rant,  4  Desaus.  (8.  C.)  614;  Kelly  v.  Kelly's  Ex'rs,  6  Rand. 
(Va.)  176.  18  Am.  Dec.  710. 

»  Wood  v.  Brian t,  2  Atk.  521;  Seed  Y.  Bradford,  1  Ves.  Sr.  501; 
Cnave  v.  Farrant,  18  Ves.  8;  Plunkett  v.  Lewis,  3  Hare,  316. 

i  84,     *  Clarke  T.  Bogardus,  12  Wend.  (N.  Y.)  67. 


§§    85-87)       OF    LEGACIES    BY    SUBSi-QUl.NT    LEGACIES.  209 

legatee  would  be  entitled  to  have  his  legacy  applied  in  pay- 
ment of  his  debt  if  the  estate  of  the  testator  is  solvent,  and, 
on  the  other  hand,  the  executors  would  be  permitted  to  off- 
set the  debt  against  a  demand  made  on  them  for  the  pay- 
ment of  the  legacy.2  But,  where  a  testamentary  gift  is  ac- 
companied by  written  declarations,  either  in  the  will  or 
made  after  its  execution,  to  the  effect  that  it  is  the  testa- 
tor's intention  to  discharge  the  debt  by  such  legacy,  an 
equitable  satisfaction  may  arise  which  will  prevent  the  ex- 
ecutors from  suing  to  enforce  payment  of  the  debt.8 


SATISFACTION  OP  LEGACIES  BY  SUBSEQUENT 
LEGACIES. 

85.  Where  the  legacies,  by  the  same  or  different 
instruments,  are  of  the  same  identical  thing, 
the  second  legacy  is  in  satisfaction  of  the 
first.1 

36.  Where  the  legacies,  by  the  same  instrument, 
are  of  the  same  amount  to  the  same  individ- 
ual, and  are  given  simpliciter,  the  second 
legacy  is  in  satisfaction  of  the  first.8 

87.  Where  the  legacies,  by  the  same  instrument, 
are  unequal  in  amount,  and  are  given  sim- 
pliciter, the  second  legacy  is  cumulative.8 

•  Wilmot  v.  Woodhouse,  4  Brown,  Ch.  227;  Clarke  v.  Bogardus, 
12  Wend.  (N.  Y.)  67;  Brokaw  v.  Hudson,  27  N.  J.  Eq.  135;  Bladder 
v.  Booth,  114  Mass.  24;  Zeigler  v.  Eckert,  6  Pa.  13,  18,  47  Am.  Dec. 
428. 

«  Eden  v.  Smith,  5  Ves.  341;  Pole  v.  Somers,  6  Ves.  309,  323;  Zeig- 
ler v.  Eckert,  6  Pa.  18,  47  Am.  Dec.  428. 

f§  85-88.  i  St.  Albans  v.  Beauclerk,  2  Atk.  638;  Suisse  v.  Lord 
Lowther,  2  Hare,  424,  432. 

2  Greenwood  v.  Greenwood,  1  Brown,  Ch.  31,  note;  Dewitt  v. 
Yates,  10  Johns.  (N.  Y.)  156,  6  Am.  Dec.  326;  Jones  v.  Oreveling's 
Ex'rs,  19  N.  J.  Law,  127;  Edwards  v.  Rainier's  Ex'rs,  17  Ohio  St.  597. 

a  Hooley  v.   Hatton,   1  Brown,   Ch.  390,   note;    Curry  v.  Pile,  2 
Brown,  Ch.  225;    Yockney  v.  Hansard,  3  Hare,  620;    Edwards  v. 
Rainier's  Ex'rs,  17  Ohio  St.  597. 
EATON  EQ.— 14 


210  'ATISFACTION    AND    PERFORMANCE.  (Ch.   9 

88.  Where  the  legacies,  by  different  instruments, 
are  of  quantity  equal  or  unequal  in  value, 
and  are  given  simpliciter,  the  second  legacy 
is  cumulative.* 

The  determination  of  the  question  whether  one  legacy  is 
in  satisfaction  of  a  prior  one  by  the  same  or  different  in- 
struments is  generally  one  of  construction.  The  presump- 
tion of  satisfaction  cannot  arise  where  the  testator  has  em- 
ployed language  which  clearly  shows  his  intention.  Where 
the  second  gift  is  of  the  same  specific  thing,  it  is  necessarily 
in  satisfaction  of  the  prior  gift.  The  questions  can  only 
arise  where  the  legacies  are  of  quantity  or  an  amount,  and 
such  legacies  are  necessarily  general  or  pecuniary,  and  not 
specific.5  If  the  legacies  are  in  the  same  instrument,  and 
are  equal  in  amount,  one  only  will  be  good,  and  slight  dif- 
ferences in  the  way  in  which  the  legacies  are  made  will  not 
be  evidence  that  the  testator  intended  they  should  be  cumu- 
lative.8 Although  the  legacies  are  in  different  instruments, 
if  they  are  not  given  simpliciter,  but  the  motive  of  the  leg- 
acy in  each  instrument  is  the  same,  and  the  same  sum  is 
given  in  each,  the  court  will  consider  these  coincidences  as 
raising  a  presumption  that  the  subsequent  legacy  was  a  rep- 
etition of  the  prior  legacy,  and  not  an  additional  gift.7  This 
presumption  can  only  arise  where  the  motive  and  the  sum 
are  the  same  in  each  instrument.  But,  if  a  different  mo- 
tive, or  no  motive  at  all,  is  declared  in  the  instruments,  and 
the  sum  in  each  is  the  same,  there  can  be  no  such  presump- 
tion, and  the  legacies  are  cumulative ; 8  and  such  is  the  fact 

«  Wnllop  v.  Hewett,  2  Ch.  R.  70;  Roch  v.  Gallon,  6  Hnre,  531; 
Russell  v.  Dickson,  4  H.  L.  Cas.  293;  Dewitt  v.  Yates,  10  Johns.  (N. 
T.)  1">6,  6  Am.  Dec.  326. 

»  Tom.  Eq.  Jur.  §  545. 

«  Greenwood  v.  Greenwood,  1  Brown,  Ch.  31,  note.  This  case  was 
where  a  legacy  was  given  by  the  testatrix  "to  her  niece,  Mary  Cook, 
the  wife  of  John  Cook,  £500,"  and  afterwards,  among  other  legacies 
In  the  same  will,  was  one  "to  her  cousin  Mary  Cook,  £500,  for  her 
own  use  and  disposal,  notwithstanding  her  coverture."  It  was  held 
that  the  legatee  was  entitled  to  but  one  legacy. 

»  Benyon  v.  Benyon,  17  Ves.  34. 

•  Koch  v.  Callen,  6  Hare,  531. 


§    89)        OK    LEGACIES    BY    POUTIONS    OB    ADVANCEMENTS.  211 

if  the  same  motive  is  expressed  in  each  instrument,  but  the 
sums  are  different.0 

However  the  rule  may  be  stated,  it  is  not  to  be  applied  to 
contravene  the  intention  of  the  testator  as  gleaned  from  the 
language  of  the  will.  The  legacies  by  different  instruments 
may  be  different  in  amount,  or  given  with  different  mo- 
tives ;  and  yet,  if  the  language  employed  in  making  the  sec- 
ond legacy  is  such  that  the  testator's  intention  to  substitute 
such  legacy  for  the  first  is  clearly  shown,  or  if  such  intention 
appears  from  language  contained  in  other  parts  of  the  will, 
the  presumption  which  would  otherwise  arise  from  such 
double  provision  is  overcome.10  In  such  cases  all  that  is 
required  is  a  fair  interpretation  of  the  language  of  the  will 
to  ascertain  the  real  intent  of  the  testator.  Recourse  should 
then  be  had,  not  to  the  rules  laid  down  as  above,  but  to  the 
general  rules  controlling  the  construction  of  wills. 

Admission  of  Extrinsic  Evidence. 

Parol  evidence  may  be  admitted  to  show  that  the  testa- 
tor intended  the  legatee  to  take  both  legacies,  where  the 
presumption,  in  pursuance  of  either  of  the  rules  above  stat- 
ed, arises  against  the  double  legacies;  for  such  evidence  is 
in  support  of  the  apparent  intention  of  the  will,  and  does 
not  contradict  it.11  But,  if  no  such  presumption  arises, — as 
where  legacies  are  given  simpliciter  by  different  instruments, 
— parol  evidence  will  not  be  admitted  to  show  that  the  tes- 
tator intended  that  the  legatee  should  take  but  one  legacy; 
for  such  evidence  would  be  contradictory  to  the  literal  terms 
of  the  will." 


SATISFACTION  OF  LEGACIES  BY  PORTION'S  OB 
ADVANCEMENTS. 

89.  Where  a  parent  or  a  person  in  loco  parentis 
makes  a  testamentary  provision  for  a  child, 
and  then,  in  his  lifetime,  makes  a  gift  or  ad- 

•  Hurst  v.  Beach,  5  Madd.  352. 

10  Rice  v.  Society,  56  N.  H.  191;  Mason's  Ex'rs  v.  Trustees,  etc., 
27  N.  J.  Eq.  47.  And  see  Pom.  Eq.  Jur.  §  548. 

n2  Smith,  Lead.  Cas.  335;  Snell,  Eq.  236. 

12  Hurst  v.  Beach,  5  Madd.  351;  Hall  v.  Hill,  1  Dru.  &  War.  94; 
Lee  v.  Pain,  4  Hare,  216. 


212  SATISFACTION    AND    PERFORMANCE.  (Ch.    '•> 

vancement  to  such  child,  the  presumption 
arises  that  the  subsequent  gift  or  advancement 
was  intended  as  a  satisfaction  of  the  testamen- 
tary provision.  This  form  of  satisfaction  is 
technically  called  an  "ademption"  of  the 
testamentary  provision.1 

This  rule  has  been  stated  in  a  leading  English  case  as 
follows :  "Where  a  parent  gives  a  legacy  to  a  child,  not 
stating  the  purpose  with  reference  to  which  he  gives  it,  the 
court  understands  him  as  giving  a  portion;  and  by  a  sort 
of  artificial  rule, — upon  an  artificial  notion,  and  a  sort  of 
feeling  upon  what  is  called  a  'leaning  against  double  por- 
tions,' — if  the  father  afterwards  advances  a  portion  on  the 
marriage  of  that  child,  though  of  less  amount,  it  is  a  satis- 
faction of  the  whole  or  in  part."  *  This  branch  of  the  doc- 
trine of  satisfaction  rests  on  the  two  maxims  that  equality 
is  equity,  and  that  equity  imputes  an  intention  to  fulfill  an 
obligation.  Looking  at  the  ordinary  dealings  of  mankind, 
equity  will  presume  that  a  parent  intends  to  do  what  he  is 
in  duty  bound  to  do, — make  a  provision  for  his  children  ac- 
cording to  his  means, — and  that  he  will  distribute  his  estate 
equally  among  them.  Hence  the  presumption  is,  in  the  ab- 
sence of  any  declaration  to  the  contrary,  that  a  parent  who 
makes  a  gift  to  his  child,  after  having  already  provided  for 
him  by  will,  did  not  intend  the  will  to  refnain  in  full  force. 
but  intended  to  satisfy  in  his  lifetime  the  obligation  which 
he  would  otherwise  have  discharged  at  his  death.8  But  if, 

§  89.  i  Where  the  will  is  made  first,  and  the  settlement  after- 
wards, it  is  always  treated  as  a  case  of  what  is  called  ademption; 
that  is  to  say,  the  benefits  given  by  the  settlement  are  considered  to 
be  an  ademption  of  the  same  benefits  given  to  the  same  child  by  the 
will.  With  reference  to  cases  of  a  previous  settlement  and  a  subse- 
quent will,  It  is  now  quite  settled  that  there  is  no  difference  be- 
tween the  two  cases  beyond  the  verbal  difference  that  the  term  "sat- 
isfaction" Is  used  where  the  settlement  has  preceded  the  will,  and 
the  term  "ademption"  where  the  will  has  preceded  the  settlement 
In  substance  there  is  no  distinction  between  the  principles  applied 
to  the  two  classes  of  cases.  Coventry  v.  Chichester,  2  Hen.  &  M. 
159. 

*  Ex  parte  Pye,  18  Ves.  140;  Id.,  2  White  &  T.  Lead.  Cas.  Eq.  (Text- 
Book  Series)  pt.  1.  p.  865;   Pym  v.  Lockycr.  .">  Mylne  &  G.  29. 

•  Suisse  v.  Lord  Lowther,  2  liare,  424,  425. 


§   89)        OF    LEGACIES    BY    POKTIONis    OK    ADVANCEMENTS.  213 

on  the  other  hand,  there  is  no  relationship  of  parent  and 
child,  either  natural  or  artificial,  the  gift  proceeds  from  the 
mere  bounty  of  the  testator,  and  no  reason  exists  for  cut- 
ting off  anything  which  has,  in  terms,  been  given  and  thus 
assigning  an  arbitrary  limit  to  that  bounty.  It  may  happen, 
therefore,  that  a  natural  child,  who  is  in  law  a  stranger  to 
his  father,  may  stand  in  a  better  situation  than  a  legitimate 
child;  for  an  advancement  in  favor  of  the  natural  child  is 
not  prima  facie  an  ademption.4  The  presumption  against 
double  portions  is  only  applicable  where  there  is  no  express 
declaration  of  the  donor's  intention ;  and  in  all  cases,  wheth- 
er the  parental  relation  exists,  or  the  parties  are  strangers, 
the  donor  may,  by  an  instrument  in  writing,  executed  con- 
temporaneously with  the  gift,  declare  the  ademption  of  a 
prior  testamentary  provision,  and  the  courts  will  give  effect 
to  such  declaration.8  The  satisfaction  or  ademption  of  a 
prior  legacy  by  a  subsequent  gift  in  the  lifetime  of  the  tes- 
tator takes  place  without  regard  to  the  assent  of  the  leg- 
atee.6 Nor  is  such  satisfaction  to  be  confused  with  a  revo- 
cation of  the  will,  for  in  no  case  can  it  be  either  a  partial 
or  complete  revocation  thereof.  "But,  the  testamentary  gift 
being  under  the  control  of  the  testator,  he  in  reality  acts  as 
his  own  executor.  He  anticipates  his  own  death,  and  by  hir 
own  hand  pays  the  legacy,  in  whole  or  in  part,  as  the  case 
may  be,  during  his  lifetime."  T 

This  rule  of  ademption  is  not  applicable  to  devises  of  real 
property.  To  so  extend  the  rule  would  be  to  nullify  stat- 
utory provisions  regulating  the  manner  in  which  wills  devis- 
ing real  property  may  be  revoked.  As  has  been  said  in  a 
leading  New  York  case,  "Its  application  to  devises  of  real 
property  might  work  great  mischief,  and  tend  to  endanger  the 
safety  of  titles  which  depend  for  their  security  upon  the  con- 
duit of  a  testamentary  devise."  "  It  will  be  evident,  upon  an 

*  Ex  parte  Pye,  18  Ves.  150. 

B  Tussaud  v.  Tussaud,  9  Ch.  Div.  363,  1  Bretts,  Lead.  Gas.  Eq. 
255;  Cooper  v.  Cooper,  8  Ch.  App.  813,  819,  note;  Howze  v.  Mal- 
lett,  57  N.  C.  194;  Richards  v.  Humphreys,  15  Pick.  (Mass.)  133. 

«  Allen  v.  Allen,  13  S.  C.  512,  36  Am.  Rep.  716;  Richards  v.  Humph- 
reys, 15  Pick.  (Mass.)  133;  Cowles  v.  Cowles,  56  Conn.  240,  13  Atl. 
414. 

7  Pom.  Eq.  .Tur.  §  554. 

s  Burnham  v.  Comfort,  108  N.  Y.  535,  15  N.  E.  710,  2  Am.  St.  Rep. 
402;  Siiell  v.  Tuttle,  44  Hun  (N.  Y.)  331;  Thomas  v.  Capps,  5  Bush 


214  SATISFACTION    AND    PERFORMANCE.  (Ch.   9 

examination  of  the  cases,  that  there  is  an  apparent  conflict  in 
regard  to  the  application  of  the  rule  of  ademption  to  devises 
of  real  property.  The  rule  as  laid  down  in  New  York  is  not 
followed  in  all  the  states.  In  a  recent  Indiana  case  it  was 
held  that  a  gift  of  money,  accompanied  by  a  receipt  stating 
that  it  was  received  in  consideration  of  the  donee's  interest 
in  land  devised  to  him  by  the  donor,  was  an  ademption  of 
the  devise.' 


SAME— PERSON  IN  LOCO  PARENTIS. 

80.  One  who  intends  to  assume  a  parent's  duty  to 
provide  for  a  child,  and  who  has  so  acted 
towards  the  chili  as  to  raise  a  moral  obliga- 
tion to  provide  for  him,  stands  in  loco  par- 
entis  to  such  child.1 

The  doctrine  of  satisfaction  or  ademption  does  not,  in 
general,  apply  to  legacies  and  portions  to  strangers,  but  on- 
ly where  the  parental  relation,  or  its  equivalent,  exists.  The 
presumption  of  satisfaction  does  not  arise  where  the  donor 
has  not  put  himself  in  loco  parentis,  if  the  subsequent  ad- 
vance is  not  proved  to  be  for  the  very  purpose  of  satisfy- 
ing the  legacy;  and  in  such  a  case  the  legatee  can  claim 
his  legacy  notwithstanding  the  advancement.2  Such  being 

(Ky.)  273,  27G;  Weston  v.  Johnson,  48  Ind.  1;  Swails  v.  Swails,  98 
Ind.  511,  515;  Allen  v.  Allen,  13  S.  C.  512,  3ti  Am.  Kep.  716;  Clark  v. 
Jetton,  5  Sneed  (Tenn.)  220;  Davys  v.  Boucher,  3  Younge  & 
Coll.  Kxch.  3l>7.  In  the  case  of  Burnhnm  v.  Comfort,  supra,  It 
is  further  said:  "A  specific  devise  of  real  property  may  be  revoked 
by  alteration  or  alienation  of  the  estate  during  the  testator's  life 
(Livingston  v.  Livingston,  3  Johns.  Ch.  [N.  Y.]  154;  McNaughton 
v.  McNaughton,  34  N.  Y.  201),  but  we  fall  to  see  any  other  mode 
of  effecting  such  revocation  without  running  counter  to  those  pro- 
visions of  the  statutes  which  declare  what  acts  shall  revoke  or 
alter  a  will  In  writing.  These  provisions  do  not  contemplate  a 
revocation  or  alteration  of  any  part  of  a  will,  or  of  any  previous 
devise,  except  by  some  other  will  In  writing,  or  some  writing  of 
the  testator  declaring  such  revocation  or  alteration,  and  executed 
With  the  same"  formalities  as  a  will." 

»  Iloquet  v.  Eldrldge,  118  Ind.  147,  20  N.  E.  733. 

I  90.     i  Powys  v.  Mansfield,  3  Mylne  &  C.  STA). 

»Ex  parte  Pye,  IS  Ves.  140;  Id.,  2  White  &  T.  Lead.  Cas.  Eq. 
(Teit-l)ouk  Series)  pt.  1,  p.  305. 


§    91)        OF    LEGACIES    BY    PORTIONS   OR    ADVANCEMENTS.  215 

the  law,  it  is  important  that  it  should  be  understood  what 
constitutes  the  parental  relationship.  The  relationship  need 
not  exist  for  all  purposes  and  in  all  respects.  It  depends 
upon  the  dolor's  intention.  A  father  is  supposed  to  intend 
to  do  what  he  is  in  duty  bound  to  do,  namely,  to  provide 
for  his  child  according  to  his  means.  So,  one  who  has  as- 
sumed that  part  of  the  office  of  a  father  is  supposed  to  in- 
tend to  do  what  he  has  assumed  to  himself  the  office  of  do- 
ing. If  the  assumption  of  the  character  be  established, — 
and  this  fact  may  be  proved  by  parol  evidence, — the  same 
inference  and  presumption  must  follow.  The  having  so 
acted  towards  a  child  as  to  raise  a  moral  obligation  to  pro- 
vide for  it  affords  a  strong  inference  in  favor  of  the  fact  of 
the  assumption  of  the  character,  and  the  child  having  a  fa- 
ther, with  whom  he  resides,  and  by  whom  he  is  maintained, 
affords  some  inference  against  it;  but  neither  inference  is 
conclusive.8  The  legal  relationship  of  father  and  child  does 
not  necessarily  exist  between  a  father  and  his  illegitimate 
child,  unless  the  putative  father  has  actually  placed  himself 
in  loco  parentis.*  An  illegitimate  child  is,  in  the  eyes  of 
the  law,  a  stranger,  and  the  presumption  against  a  double 
provision  will  not  operate  against  him,  unless  other  circum- 
stances than  the  relation  of  parentage  "by  nature"  are  found. 
It  is  not  necessary  that  there  should  be  an  actual  relation- 
ship, nor  that  there  should  be  a  legal  adoption  of  the  child ; 8 
and,  notwithstanding  the  father  of  the  child  is  living,  anoth- 
er person  may  be  deemed  to  stand  in  loco  parentis  to  it.' 

SAME^PRESUMPTION  IN  FAVOR  OF  ADEMPTION. 

91.  The  presumption  in  favor  of  ademption,  or 
satisfaction  of  a  legacy  by  a  subsequent  ad- 
vancement, -will  not  be  repelled  by  slight 
circumstances  showing  a  contrary  intention.1 

»  Powys  v.  Mansfield,  3  Mylne  &  C.  359;  Ex  parte  Pye,  18  Ves. 
140;  Pym  v.  Lockyer,  5  Mylne  &  C.  29;  Cooper  v.  Cooper,  21  Wkly. 
Rep.  501 ;  Langdon  v.  Astor's  Ex'rs,  16  N.  Y.  9. 

*  Ex  parte  Pye,  18  Ves.  140,  152;  Wetnerby  v.  Dixon,  19  Ves.  407. 

e  Rogers  v.  Soutten,  2  Keen,  598. 

«  Fowkes  v.  Pascoe,  10  Ch.  App.  350. 

§  91.  i  Thynne  v.  Earl  of  Glengall,  2  H.  L.  Cas.  131;  Ex  parte 
Pye,  18  Ves.  140;  Earl  of  Durham  v.  Wharton,  3  Clark  &  F.  146. 


216  SATISFACTION    AND    J'ERl-ulC.M ANCE.  (jJil.   i) 

In  this  respect  the  doctrine  of  satisfaction  of  legacies  by 
subsequent  advancements  differs  from  that  of  satisfaction  of 
debts  by  legacies.  It  does  not  affect  the  application  of  the 
doctrine  if  the  legacy  and  subsequent  advancement  are  un- 
equal in  amount,  for  the  satisfaction  will  be  pro  tanto ;  2 
nor  is  it  necessary  that  they  should  be  payable  at  the  same 
time.  So,  also,  a  residuary  bequest,  though  uncertain  in 
amount,  may  be  adeemed  either  totally  or  pro  tanto  by  a  sub- 
sequent gift  or  advancement.3  But  a  legacy  cannot,  in  any 
event,  be  adeemed  by  a  gift  or  advancement  made  before  the 
execution  of  the  will.4  And  it  would  seem  to  be  true  that 
the  presumption  of  an  ademption  does  not  arise  where  the 
subsequent  gift  is  of  a  different  character  from  the  prior 
testamentary  devise  or  bequest,  or  is  expressed  to  be  given 
for  a  different  purpose,6  although  Mr.  Pomeroy  has  said 
that  the  latest  English  decisions  have  gone  so  far  as  to  ren- 
der it  doubtful  whether  it  is  even  necessary  that  the  subject- 
matter  of  the  two  gifts  should  be  ejnsdem  generis.6  And 
where  a  testator,  during  his  lifetime,  made  several  small 
gifts  to  a  child,  they  will  not  be  added  together  for  the  pur- 
pose of  creating  a  presumption  that  they  were  intended  in 
ademption  of  a  prior  legacy.1 

*  Pym  v.  Lockyer,  5  Mylne  &  C.  29,  overruling  earlier  cases  hold- 
Ing  an  advancement  to  be  a  complete  aderaptlon  of  a  prior  legacy, 
even  though  the  latter  was  larger  in  amount     Kirk  v.  Eddowes,  3 
Hare.  509;  Langdon  v.  Astor's  Ex'rs,  16  N.  Y.  9;  Richards  v.  Humph- 
reys. ir>  Pick.  (Mass.)  133,  136;  Jones  v.  Mason,  5  Rand.  (Va.)  577,  16 
Am.  Dec.  761. 

«  Schofield  v.  Heap,  27  Beav.  93;  Monteflore  v.  Guedalla,  1  De 
Gex,  F.  &  J.  93;  Vickers  v.  Vickers.  37  Ch.  Div.  526;  Van  Houten  v. 
Post,  32  N.  J.  Eq.  709;  Allen  v.  Allen.  13  S.  C.  512,  36  Am.  Rep.  716; 
In  re  Turfler's  Estate.  1  Misc.  Rep.  58,  23  N.  Y.  Supp.  135.  A  con- 
trary rule  once  prevailed  in  England.  Freemantle  v.  Bankes,  5  Ves. 
85.  See,  also,  Davis  v.  Whittaker,  38  Ark.  435. 

4  In  re  Crawford,  113  N.  Y.  r>r,0,  5G7,  21  N.  E.  692,  5  L.  R.  A.  71; 
Jaques  v.  Swasey,  153  Mass.  596,  27  N.  E.  771,  13  L.  R.  A.  560; 
Yundt's  Appeal,  13  Pa.  675;  Taylor  v.  Cartwrlght,  L.  R.  14  Eq.  167, 
176. 

a  Suisse  v.  Lord  Lowther,  2  Hare,  424,  434;  Watson  v.  Watson,  33 
Beav.  574;  Clark  v.  Jetton,  5  Sneed  (Tenn.)  21*9;  Allen  v.  Allen,  13 
8.  C.  512,  36  Am.  Rep.  716;  Weston  v.  Johnson,  48  Ind.  1. 

•  Pom.  Eq.  Jur.  §  5.">7. 

»  Suisse  v.  Lord  Lowther,  2  Hare.  424;  Nevln  v.  Drysdale.  L.  R. 
4  Kq.  r.17;  Watson  v.  Watson,  33  Beav.  574;  Schofleld  v.  Heap.  27 
Beav.  'Jo. 


§    92)        OF   LEGACIES    BY    PORTIONS    OR    ADVANCEMENTS.  217 

Effect  of  Subsequent  Codicil. 

Where  a  legacy  is  presumed  to  be  satisfied  by  a  subse- 
quent advancement  or  portion,  a  subsequent  codicil  to  the 
will,  which,  on  its  face,  purports  to  be  in  confirmation  of  the 
will,  will  not  operate  to  revive  the  legacy.  A  codicil  which 
republishes  a  will  only  acts  upon  the  will  as  it  existed  at  the 
time  of  the  execution  of  the  codicil ;  and  since,  at  that  time, 
the  legacy  was  adeemed  by  the  advancement,  the  codicil  can- 
not effect  a  revivor  of  the  legacy.  The  application  of  a 
different  principle  would  make  a  codicil  republishing  a  will 
operate  as  a  new  bequest.8 


SAME— WHEN  SATISFACTION  MUST  BE  EX- 
PRESSED. 

82.  When  the  relationship  of  parent  and  child 
does  not  exist  between  the  testator  and  lega- 
tee, a  legacy  •will  not  be  satisfied  or  adeemed 
by  a  subsequent  gift  unless  the  intention  of 
the  donor  be  expressed  to  that  effect. 
UMITATION— If,  in  such  a  case,  the  legacy  be 
given  for  a  particular  purpose,  and  the  tes- 
tator subsequently  makes  a  gift  or  ad- 
vancement for  the  same  purpose,  the  subse- 
quent gift  or  advancement  is  in  satisfaction 
of  the  legacy.1 

As  has  been  noted,  the  presumption  of  satisfaction  does 
not  arise  as  between  persons  who  do  not  stand  within  the 
natural  or  assumed  relationship  of  parent  and  child.  As 
between  such  persons,  the  legacy  will  be  deemed  a  bounty, 
and  cannot  be  impliedly  adeemed  by  a  subsequent  advance- 

«  Langdon  v.  Astor's  Ex'rs,  16  N.  Y.  37;  Powys  v.  Mansfield,  3 
Mylne  &  C.  37G;  Drinkwater  v.  Falconer,  2  Ves.  Sr.  623;  Paine  v. 
Parsons,  14  Pick.  (Mass.)  318;  Milner  v.  Atberton's  Ex'r,  35  Pa.  528, 
637. 

§  92.  i  Monck  v.  Monck,  1  Ball  &  B.  303:  Rosewell  v.  Bennett.  3 
Atk.  77:  Pankhurst  v.  llowell.  <i  Cli.  App.  I'M;  Sims  v.  Sims,  10  N. 
J.  Eq.  158;  Williams'  Appeal,  73  Pa.  249. 


218  SATISFACTION    AND    PERFORMANCE.  (Oil.   (J 

merit.'  In  the  case  of  such  persons  a  legacy  can  only  be 
satisfied  by  a  payment  or  advancement  made  with  the  ex- 
pressed intent  of  the  testator  to  work  such  satisfaction.  In 
the  case  of  a  stranger  the  presumption  against  double  por- 
tions does  not  exist.  The  question  of  satisfaction  never 
arises  except  upon  the  express  words  of  the  donor,  and 
whether  the  gifts  said  to  be  given  in  satisfaction  are  given 
by  a  father  or  a  stranger  is  wholly  immaterial,  and  it  is  sole- 
ly a  question  whether  the  original  benefactor  intended  his 
benefit  should  be  diminished  or  adeemed  by  benefits  derived 
from  any  other  source,  and,  if  so,  what  other  source.8  Gen- 
erally speaking,  where  a  testator  makes  a  bequest  of  a  sum 
of  money,  and  afterwards  pays  to  the  legatee  a  sum  of  mon- 
ey, which  he  expressly  declares  to  be  in  lieu  of  the  bequest 
so  made,  and  the  money  is  accepted  by  the  legatee,  the  leg- 
acy is  satisfied;  and  this  declared  intention  of  the  testator 
will  overcome  any  presumption  which  may  arise  against  the 
ademption  of  such  a  legacy.* 

Limitation. 

As  limiting  the  rule  that,  as  between  strangers,  it  is  nec- 
essary that  the  intent  of  the  testator  to  satisfy  a  prior  legacy 
by  a  payment  or  advancement  be  expressed,  it  may  be  stated 
that,  if  the  legacy  be  for  a  particular  purpose,  and  the  pay- 
ment or  advancement  is  for  the  same  purpose,  such  payment 
or  advancement  is  presumed  to  be  a  satisfaction  of  the  leg- 
acy. In  such  cases  the  testator  accomplishes  during. his 
lifetime  the  purpose  or  object  which,  by  his  will,  he  had 

»  Pankhurst  v.  Howell,  6  Ch.  App.  136,  137. 

»  Cooper  v.  Cooper,  8  "Ch.  App.  813,  819,  note  by  Lord  Romilly,  M. 
R.,  where  the  principle  is  thus  illustrated:  "This  may  be  shown 
pointedly  in  a  case  where  the  gifts  supposed  to  be  a  satisfaction  of 
the  original  gifts  are  gifts  of  land.  In  the  case  of  a  parent,  or  per- 
son in  loco  pareutis,  land  would  be  no  presumed  satisfaction  of  .1  gift 
of  money.  But,  if  the  original  gift  was  to  a  stranger,  the  doctrine 
of  satisfaction  becomes  applicable  according  to  the  words  of  the 
original  donor.  Then  the  question  is  whether  the  words  he  has 
used,  fairly  interpreted,  meant  the  gift  of  land  as  satisfaction  of  the 
benefits  he  has  bequeathed  or  previously  conveyed.  It  is  therefore 
of  paramount  Importance  to  consider  in  all  cases  whether  the  doc- 
trine of  presumption  against  double  portions,  or  the  doctrine  of  the 
construction  of  Instruments,  is  that  which  applies." 

«  Howze  v.  Malk'tt,  67  N.  C.  1W;  Richards  v.  Humphreys,  15  Pick. 
(Massj 


§    93)  SATISFACTION    OF   PORTION'S    BY    LEGACIES.  210 

designed  to  accomplish  after  his  death.6  And  parol  evi- 
dence of  the  donor's  intention  to  satisfy  the  legacy  may  be 
admitted.6 


SATISFACTION  OF  PORTIONS  BY  LEGACIES. 

93.  From  the  same  inclination  of  courts  against 
double  portions  arises  the  presumption  that, 
•where  a  legacy  given  by  a  parent  or  a  person 
standing  in  loco  parentis  is  as  great  as,  or 
greater  than,  a  portion  or  provision  previ- 
ously secured  to  the  legatee  upon  marriage 
or  otherwise,  such  legacy  was  intended  by 
the  testator  as  a  complete  satisfaction  of  such 
portion  or  other  provision.1  If  the  legacy  is 
not  as  great  as  the  portion  or  provision,  the 
presumption  arises  that  it  was  intended  as  a 
satisfaction  pro  tanto.2 

The  rules  applicable  to  the  satisfaction  of  legacies  by  sub- 
sequent portions  and  advancements  are  generally  applicable 
to  the  questions  involved  in  the  satisfaction  of  portions  by 
subsequent  legacies.  The  cases  arising  under  this  branch  of 
the  doctrine  of  satisfaction  are  not  frequent  with  us.  In 
England  they  generally  arise  in  this  manner:  A  father,  on 
the  marriage  of  a  child,  covenants  to  settle  certain  prop- 
erty on  him,  and  afterwards,  by  will,  makes  provision  for 
him ;  and  the  question  is  whether  the  testamentary  provi- 
sion is  a  satisfaction  of  the  prior  covenant  obligation,  or  is 
the  child  entitled  to  both?  The  presumption  against  double 

•  Monck  v.  Monck,  1  Ball  &  B.  303. 

«  Duboze  v.  Mann,  2  Brown,  Ch.  166,  519,  521;  Trimmer  v.  Bayne, 
7  Ves.  516. 

§  93.  i  Bruen  v.  Bruen,  2  Vern.  439;  Moulson  v.  Moulson,  1 
Brown,  Ch.  82;  Ackworth  v.  Ackworth,  Id.  307,  note;  Copley  v.  Cop- 
ley, 1  P.  Wins.  147;  Duke  of  Somerset  v.  Duchess  of  Somerset,  1 
Brown,  Ch.  309;  Bengough  v.  Walker,  15  Ves.  507;  Thynue  y.  Earl 
of  Glengall,  2  H.  L.  Cas.  131;  Paget  v.  Grenfell,  L.  R.  6  Eq.  7;  Rog- 
ers v.  French,  19  Ga.  310;  Clark  v.  Jetton,  5  Sneed  (Tenn.)  229. 

2  Warren  v.  Warren,  1  Brown,  Ch.  305;  Thynue  v.  Earl  of  Glen- 
gall,  2  H.  L.  Cas.  131. 


220  SATISFACTION    AND    PERFORMANCE.  (Ch.  9 

portions  is  not  as  strong  where  the  settlement  or  portion 
precedes  the  will  as  where  the  settlement  or  portion  is  sub- 
sequent to  the  will,  and  therefore  what  would  destroy  the 
presumption  of  satisfaction  if  the  legacy  is  subsequent  to 
the  portion  would  not  produce  that  effect  if  the  legacy  was 
prior  to  the  portion.  The  reason  for  this  distinction  is  ob- 
vious. The  will  of  the  testator  is  at  all  times  subject  to 
change  by  him,  and  any  legacy  contained  therein  may  be 
revoked  at  his  pleasure.  But,  if  a  covenant  to  bestow  a  set- 
tlement or  portion  be  made,  an  obligation  is  imposed  on  the 
donor  which  cannot  be  discharged  by  him  without  the  donee's 
consent.  He  can  only  put  an  end  to  it  by  payment,  or  by 
making  a  gift  with  the  condition,  expressed  or  implied,  that 
the  legatee  will  take  the  gift  made  by  the  will  in  satisfac- 
tion of  his  claim  under  the  covenant.  It  is,  therefore,  easier 
to  assume  an  intention  to  adeem  than  an  intention  to  give  a 
legacy  in  lieu  or  in  satisfaction  of  an  existing  obligation.' 

PERFORMANCE— DOCTRINE  STATED. 

94.  When  a  person  has  covenanted  to  do  a  cer- 
tain act,  and  he  does  some  other  act  that  is 
capable  of  being  applied  towards  a  perform- 
ance of  his  covenant,  he  will  be  presumed 
to  have  had  the  intention  of  performing  his 
covenant  when  he  did  the  other  act.1 

This  doctrine  is  based  on  the  maxim  that  equity  imputes 
an  intention  to  fulfill  an  obligation.  While  the  doctrine  of 
satisfaction  and  performance  have  their  origin  in  the  equita- 
ble antipathy  to  double  benefits  to  the  same  recipients,  creat- 
ing the  presumption  that  only  one  benefit  was  intentionally 
conferred,  there  is  a  pronounced  difference  between  them. 
This  distinction  may  be  stated  thus:  In  satisfaction  the 
thing  done  is  something  different  from  the  thing  covenanted 
to  be  done,  and  is,  in  fact,  a  substitute  for  the  thing  cove- 
nanted to  be  done ;  whereas  in  performance  the  identical 
act  which  the  party  contracted  to  do  is  considered  to  have 

»  Tussaud  v.  Tussaurl.  9  Ch.  Div.  303;  Lord  Cliichester  v.  Coven- 
try. I..  K.  2  H.  L.  71.  !M». 
|  W.     i  Suell,  Eii.  122L 


§   95)  PERFORMANCE.  221 

been  done.2  Questions  arising  under  this  doctrine  gener- 
ally involve  matters  pertaining  to  marriage  articles.  These 
questions  have  been  frequently  considered  in  the  English 
courts,  but  have  seldom  been  judicially  discussed  in  the 
courts  of  this  country.  It  only  seems  necessary  in  this 
work  to  briefly  state  some  of  the  general  principles  gov- 
erning the  application  of  the  doctrine. 

SAME— APPLICATION  OF  DOCTRINE. 

95.  The  doctrine  of  performance  is  applied  in  two 
classes  of  cases : 

(a)  Where  there  is  a  covenant  to  purchase  and 

settle  lands,  and  a  purchase  is  made,  but  is 
not  expressed  to  be  in  pursuance  of  such 
covenant,  and  no  settlement  of  the  lands  is 
made. 

(b)  Where  there  is  a  covenant  to  leave  certain 

property,  and,  under  the  intestacy  of  the 
covenantor,  the  covenantee  receives  prop- 
erty.1 

The  first  branch  of  this  subject  was  fully  discussed  in  the 
leading  case  of  Lechmere  v.  Earl  of  Carlisle.2  In  that  case 
there  was  a  covenant  by  a  husband  on  his  marriage  to  lay 
out  a  certain  sum  of  money  in  the  purchase  of  lands,  to  be 
settled  on  himself  for  life,  and  remainder  to  his  wife  for  her 
jointure.  The  husband  purchased,  after  his  marriage,  cer- 
tain lands  in  fee,  some  estates  for  lives,  and  some  reversion- 
ary estates  in  fee,  expectant  on  lives,  and  also  contracted 
for  the  purchase  of  certain  estates  in  fee  in  possession. 
The  husband  died  intestate,  without  issue,  and  without  hav- 
ing made  a  settlement  of  any  estate  as  agreed  in  his  cove- 
nant. It  was  held  that  the  lands  purchased  and  contracted 
to  be  purchased  in  fee  simple  in  possession  after  the  cove- 
nant, although  with  only  a  part  of  the  sum  agreed  to  be  ex- 

2  Goldsmid  v.  Goldsmid,  1  Swanst.  211. 
§  95.     i  Snell,  Eq.  221. 

2  3  P.  Wms.  211,  227;  2  White  &  T.  Lead.  Cas.  Eq.  (Text-Book 
Series)  pt.  1,  p.  413. 


222  SATISFACTION    AND    PKK1-ORMANCE.  (Ch.   9 

pended,  and  left  to  descend,  should  go  in  part  performance 
of  the  covenant. 

The  following  principles  are  deemed  well  established  from 
the  exhaustive  discussion  in  the  case  above  referred  to,  as 
well  as  from  other  cases  involving  the  same  questions :  * 

(1)  Where  the  lands  purchased  are  of  less  value  than  the 
lands  covenanted  to  be  purchased  and  settled,  they  will  be 
deemed  purchased  in  part  performance  of  the  covenant. 

(2)  Where  the  covenant  provides  for  the  future  purchase 
of  lands,  it  cannot  be  presumed  that  lands  of  which  the  cove- 
nantor was  seised  at  the  time  of  executing  the  covenant, 
descending  to  his  heir,  were  intended  to  be  taken  in  per- 
formance of  the  covenant. 

(3)  It  cannot  be  presumed  that  property  of  a  different 
nature  from  that  covenanted  to  be  purchased  and  settled 
by  the  covenantor  was  intended  as  a  performance. 

(4)  Although,  by  the  settlement,  the  consent  of  trustees 
is  required,  the  absence  of  that  consent  will  not  necessarily 
prevent  the  presumption  of  performance  from  arising,  if  the 
other  circumstances  of  the  purchase  are  favorable  to  such 
presumption.* 

The  second  class  of  cases  is  illustrated  by  Blandy  v.  Wid- 
more,5  where  a  man  had  covenanted  to  leave  his  wife  £620. 
It  was  held  that  she  must  take  her  distributive  share  as 
performance  of  the  covenant,  and  that  she  could  not  take 
her  share  and  also  claim  under  the  covenant. 

»  See,  also,  Wilcocks  v.  Wilcocks,  2  Vern.  558;  Sowden  v.  Sowden, 
3  P.  Wms.  228.  note;  1  Brown,  Ch.  582;  Pinnell  v.  Hallet,  Amb.  106. 

<  Snell,  Eq.  224. 

•  1  P.  Wms.  324;  2  White  &  T.  Lead.  Cas.  Eq.  (Text-Book  Series) 
pt.  1,  p.  428. 


§  .1)6)  CONVERSION    AND    RECONVERSION.  223 

CHAPTER  X. 

/ 

CONVERSION  AND  RECONVERSION. 

96.  Equitable  Conversion  Defined. 

97.  Application  of  Doctrine. 

98.  Words  Sufficient  to  Effect  Conversion. 

99.  Time  when  Conversion  Takes  Place. 

100.  Effect  of  Conversion. 

101.  Conversion  by  Paramount  Authority. 

102-103.    Total  or  Partial  Failure  of  Purposes  for  which  Conversion 

is  Directed. 

104.     Double  Conversion. 
105-106.     Reconversion. 

EQUITABLE  CONVERSION  DEFINED. 

96.  Equitable  conversion  is  that  equitable  or  im- 
plied change  in  the  nature  of  property  by 
which,  for  certain  purposes,  real  estate  is  con- 
sidered as  personal,  and  personal  estate  as 
real,  and  transmissible  and  descendible  as 
such.1 

This  doctrine  rests  on  the  maxim  that  equity  regards 
that  as  done  which  ought  to  be  done,  and  is,  indeed,  the 
most  marked  illustration  of  that  maxim.  As  was  said  by 
Sir  Thomas  Sewell,  M.  R.,  in  the  leading  case  of  Fletcher  v. 
Ashburner :  2  "Nothing  is  better  established  than  this  prin- 
ciple that  money  directed  to  be  employed  in  the  purchase 
of  land,  and  land  directed  to  be  sold  and  turned  into  money, 
are  to  be  considered  as  that  species  of  property  into  which 
they  are  directed  to  be  converted;  and  this  in  whatever 

§  96.  i  Haynes,  Eq.  p.  325;  Pom.  Eq.  Jur.  §  1159.  And  see 
Fletcher  v.  Ashburner,  1  Brown,  Ch.  497,  which  is  a  leading  case  on 
the  subject.  Bispham  (Eq.  p.  307)  says:  "By  equitable  conversion 
Is  meant  a  change  of  property  from  real  into  personal,  or  from  per- 
sonal into  real,  not  actually  taking  place,  but  presumed  to  exist  only 
by  construction  or  intendment  of  equity."  See  Story,  Eq.  Jur.  §  1212. 

2  1  Brown,  Ch.  497;  1  White  &  T.  Lead.  Cas.  Eq.  (Text-Book  Se- 
ries) pt.  2,  p.  968. 


224  CONVERSION    AND   RECONVERSION.  (Ch.    10 

manner  the  direction  is  given,  whether  by  will,  by  way  of 
contract,  marriage  articles,  settlement,  or  otherwise,  and 
whether  the  money  is  actually  deposited  or  covenanted  to 
be  paid,  whether  the  land  is  actually  conveyed  or  only  agreed 
to  be  conveyed."  While  no  express  declaration  need  be 
contained  in  the  instrument  in  order  that  land  shall  be  treat- 
ed as  money  and  money  as  land,  it  is  requisite  that  an  in- 
tention be  absolutely  expressed  that  the  land  shall  be  sold, 
and  turned  into  money,  and  that  money  shall  be  expended 
in  the  purchase  of  land."  When  once  this  intention  is  suf- 
ficiently expressed,  the  accidental  circumstance  that  the 
money  has  not  in  fact  been  laid  out  in  land,  or  the  land  in 
fact  not  been  sold  and  turned  into  money,  can  have  no  ef- 
fect, for  equity  will  treat  as  done  that  which  ought  to  have 
been  done.*  The  true  test  in  all  cases  is  whether  there  is 
in  the  instrument  an  absolute  direction  that  the  real  estate 
be  turned  into  personal,  or  the  personal  estate  be  turned 
into  real.* 


SAME— APPLICATION  OF  DOCTRINE. 

97.  The  doctrine  is  applicable  to  cases  arising  tin- 
der 

(a)  Trusts  contained  in  wills; 

(b)  Settlements,  and  other   contracts  inter  vivos. 

•  Pom.  Eq.  Jur.  {  1159;  White  v.  Howard,  46  N.  Y.  144;   Haward 
T.  Feavey,  128  111.  430,  21  N.  E.  503.  15  Am.  St.  Rep.  120;    Eueberg 
V.  Carter,  98  Mo.  647,  12  S.  W.  522,  14  Am.  St.  Rep.  664. 

•  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wins.  215;    Scudamore  v. 
Scudamore,  Finch,  Prec.  543.     In  the  former  case  Sir  Jos.  Jekyll 
Bald:    "The  forbearance  of  the  trustees  in  not  doing  what  It  was 
their  office  to  have  done  shall  In  no  sort  prejudice  the  cestuis  que 
trustent,  since  at  that  rate  it  would  be  in  the  power  of  trustees, 
either  by  doing  or  delaying  to  do  their  duty,  to  affect  the  right  of 
other  persons,  which  can  never  be  maintained.    Wherefore  the  rule 
In  such  cases  is  that  what  ought  to  have  been  done  shall  be  taken 
as  done;  and  a  rule  so  powerful  it  is  as  to  alter  the  very  nature  of 
things,— to  make  money  land,  and,  on  the  contrary,  to  turn  land  Into 
money.    Thus  money  articled  to  be  laid  out  in  land  shall  be  taken  as 
land,  and  descend  to  the  heir.  and.  on  the  other  hand,  land  agreed  to 
be  sold  shall  be  considered  as  personal  estate." 

•  Pom.  Eq.  Jur.  §  1159. 


§    97)  EQUITABLE   CONVERSION   DEFINED.  225 

It  was  said  in  the  leading  case  of  Fletcher  v.  Ashburner, 
supra,  that,  wherever  a  conversion  is  directed,  it  will  take 
place  in  whatever  manner  the  direction  is  given,  "whether 
by  will,  by  way  of  contract,  marriage  articles,  settlement,  or 
otherwise."  The  cases  in  which  this  doctrine  applies  arise, 
for  the  most  part,  under  trusts  created  by  will.  In  the  case 
of  contracts  it  is  essential  that  the  contract  be  a  binding  one, 
and  that  the  object  of  the  conversion  be  within  its  scope, 
and  equity  will  not  assume  a  conversion  in  favor  of  or 
against  a  person  who  is  not  a  party  to  the  contract.1 

Land  Contracts. 

After  the  execution  of  a  contract  for  the  sale  of  land, 
equity,  looking  on  that  agreed  to  be  done  as  actually  done, 
considers  the  vendee  as  the  equitable  owner  of  the  land,  and 
the  interest  of  the  vendor  as  personalty.2  But,  to  have  this 
effect,  the  contract  must  be  enforceable,  and  hence  a  parol 
contract  of  sale  does  not  work  a  conversion  of  the  real  es- 
tate into  personalty  so  far  as  the  vendor's  rights  are  con- 
cerned.8 A  verbal  agreement,  however,  by  an  owner  who 
dies  intestate  before  it  is  carried  out,  will,  if  adopted  by  his 
heir  voluntarily,  and  not  under  a  mistake,  effect  a  conver- 
sion retrospectively,  and  the  money  will  belong  to  the  next 
of  kin.4  If  the  contract  is  enforceable,  all  the  consequences 
of  conversion  follow.  The  vendee  will  be  entitled  to  all  the 
rents  and  profits  from  the  day  of  the  completion  of  the  con- 
tract, and  he  must  bear  any  loss  and  will  be  entitled  to  all 
the  benefits  arising  between  the  execution  of  the  contract 
and  the  conveyance  of  the  land ;  and  on  the  vendor's  death 
the  purchase  price  belongs  to  his  residuary  legatees,  and  not 
to  the  persons  to  whom  he  has  specifically  devised  the  land, 
though  they  will  be  compelled  to  execute  the  deed  to  the 
vendee.8 

§  97.  i  Adams,  Eq.  p.  141.  The  maxim,  "Equity  regards  that  as 
done  which  ought  to  be  done,"  applies  only  to  persons  who  are  enti- 
tled to  enforce  the  contract,  not  to  volunteers.  Chetwynd  v.  Mor- 
gan, 31  Ch.  Div.  596. 

*  See  ante,  p.  77,  maxim  "Equity  regards   that  as  done  which 
ought  to  be  done;"  Gilbert  v.  Port,  28  Ohio  St.  276,  296. 

«  Mills  v.  Harris,  104  N.  C.  626,  10  S.  E.  704. 
«  Frayne  v.  Taylor,  10  Jur.  (N.  S.)  119. 

•  Newport  Waterworks  T.  Sisson,  18  R.  I.  411,  28  AtL  33ft. 

EATON.EQ.— 15 


226  CONVERSION   AND   RECONVERSION.  (Ch.   10 

Partnerships. 

The  doctrine  of  conversion  is  applicable  to  partnerships. 
As  has  been  stated  in  a  leading  English  case  on  this  subject : 
"Irrespective  of  authority,  and  looking  at  the  matter  with 
reference  to  principles  well  established  in  this  court,  if  part- 
ners purchase  land  merely  for  the  purpose  of  their  trade, 
and  pay  for  it  out  of  the  partnership  property,  that  trans- 
action makes  the  property  personalty,  and  effects  a  conver- 
sion out  and  out.  What  is  the  clear  principle  of  this  court 
as  to  the  law  of  partnership?  It  is  that  on  the  dissolution 
of  the  partnership  all  the  property  belonging  to  the  part- 
nership shall  be  sold,  and  the  proceeds  of  the  sale,  after  dis- 
charging all  the  partnership  debts  and  liabilities,  shall  be 
divided  among  the  partners  according  to  their  respective 
shares  in  the  capital.  That  is  the  general  rule,  and  it  re- 
quires no  special  stipulation.  It  is  inherent  in  the  very  con- 
tract of  partnership."  • 

SAME— WORDS    SUFFICIENT    TO    EFFECT    CONVER- 
SION. 

98.  The  direction  to  convert  either  money  into  land 
or  land  into  money  must  be  clear  and  im- 
perative, although  it  need  not  be  express, 
but  may  be  implied  from  the  general  scope 
and  tenor  of  the  instrument,  showing  a  clear 
intention  of  the  owner  to  convert  in  any 
event. 

The  direction  to  convert  must  be  clear  and  imperative; 
for,  if  the  question  of  laying  out  money  in  land  or  land  in 

•  Attorney  General  v.  Hubbuck,  10  Q.  B.  Dlv.  488,  affirmed  in  13 
Q.  B.  Div.  275,  citing  with  approval  Darby  v.  Darby,  3  Drew.  495. 
The  general  rule  throughout  the  United  States  is  that,  In  the  ab- 
sence of  any  agreement  to  the  contrary,  partnership  real  estate  re- 
tains the  character  of  realty  until  the  occasion  arises  for  a  conver- 
sion, and  then  becomes  personalty  only  to  the  extent  required.  The 
portion  not  required  for  partnership  equities  retains  its  character  as 
realty,  and  the  rule  leaves  the  laws  of  descent  to  their  ordinary  op- 
eration. Darrow  v.  Calkins,  154  N.  Y.  503,  49  N.  E.  61;  Shearer  v. 
Shearer,  98  Mass.  107;  Hale  v.  Plummer,  6  Ind.  121;  Dilwortb  v. 
Mayfleld.  30  Miss.  40;  Lang's  Heirs  v.  Waring,  25  Ala.  625. 


§    OS)  EQUITABLE   CONVERSION    DEFINED.  227 

money  is  optional  or  discretionary,  there  is  no  duty  im- 
posed on  the  trustees  or  other  parties  to  make  the  change, 
and  no  equitable  conversion  can  take  place.1  If  the  will  or 
other  instrument  directs  that  the  land  be  sold  in  express 
terms,  it  is  obviously  the  duty  of  the  trustees  or  other  par- 
ties to  make  the  sale,  and  turn  the  land  into  personalty,  and 
apply  the  proceeds  as  directed  in  such  will  or  instrument. 
And,  where  the  will  or  other  instrument  has  provided  for 
such  a  disposition  of  the  property  as  to  render  it  necessary 
to  sell  the  lands  or  invest  the  money  in  order  that  the  terms 
of  the  instrument  be  carried  into  effect,  the  conversion  will 
be  deemed  to  have  been  made.  In  order  to  work  a  conver- 
sion, there  must  be  either  a  positive  direction  to  sell,  or  an  ab- 
solute necessity  to  sell  in  order  to  execute  the  instrument,  or 
such  a  blending  of  real  and  personal  estate  in  the  instrument 
as  to  clearly  show  that  it  was  intended  to  create  a  fund  out  of 
both  real  and  personal  estate,  and  to  provide  for  the  dis- 
position of  such  fund  as  money.2  The  determination  of  the 
question  is  always  based  on  intention.  Such  intention  is  to- 
be  discovered  from  the  whole  scope  and  tenor  of  the  in- 
strument. In  general,  courts  of  equity  will  not  interfere  to» 
change  the  quality  of  property  as  the  testator  or  intestate 
has  left  it,  unless  there  is  some  clear  act  or  intention  by 
which  he  has  unequivocally  fixed  upon  it  throughout  a  defi- 
nite character  either  as  money  or  as  land.8  And  where  a 
will  directs  the  conversion  of  real  property,  but  for  a  void 
purpose,  the  doctrine  of  conversion  does  not  apply;  and, 
unless  otherwise  plainly  indicated  by  the  will,  such  realty  will 
pass  to  the  heirs  as  realty.4 

Where  the  general  scheme  of  the  will  requires  a  conver- 
sion, a  power  of  sale  operates  as  a  conversion  of  real  prop- 

§  98.  i  Haynes,  Eq.  p  329;  Wheless  v.  Wheless,  92  Tenn.  293,  21 
S.  W.  595;  Hood  v.  Hood,  85  N.  Y.  561;  Prentice  v.  Janssen,  79  N. 
Y.  478;  Peterson's  Appeal,  88  Pa.  397;  Jones  v.  Caldwell,  97  Pa.  42; 
McClure's  Appeal,  72  Pa.  414;  Pratt  v.  Talliaferro,  3  Leigh  (Va.)  419; 
Dodge  v.  Williams,  46  Wis.  70,  1  N.  W.  92,  50  N.  W.  1103;  Janes  v. 
Throckmorton,  57  Cal.  368. 

2  Hunt's  Appeal,  105  Pa,  128,  141;  In  re  Marchall's  Estate,  147  Pa. 
77,  23  Atl.  391;  Merritt  v.  Merritt,  32  App.  Div.  442,  53  N.  Y.  Supp. 
127;  Harrington  v.  Pier,  105  Wis.  485,  82  N.  W.  345. 

»  Story,  Eq.  Jur.  §  1214;  King  v.  King,  13  R.  I.  501. 

«  Harrington  v.  Pier,  105  Wis.  485,  82  N.  W.  345. 


228  CONVERSION    AND    RECONVERSION.  (Ch.   10 

crty  into  personalty,  although  not  in  terms  imperative.8  In 
such  a  case  it  becomes  the  duty  and  obligation  of  the  trus- 
tees to  sell,  and  the  doctrine  of  equitable  conversion  must 
necessarily  apply."  And  an  imperative  direction  to  sell  land 
works  an  equitable  conversion,  though  the  time  of  sale  is 
left  by  the  owner  in  the  discretion  of  some  one  else.7  But 
it  has  always  been  held  that  a  mere  naked  power  of  sale,  or 
a  discretionary  or  contingent  power,  conferred  by  the  owner 
on  a  third  person,  does  not  effect  a  conversion  of  realty  in- 
to personalty ;  *  nor,  on  the  other  hand,  will  a  mere  discre- 
tionary power  to  invest  personalty  in  land  work  a  conver- 
sion of  the  money  into  real  estate.* 

SAME— TIME  WHEN  CONVERSION  TAKES  PLACE. 

99.  Subject  to  the  general  principle  that  the  terms 
of  each  instrument  must  control  as  to  the 
construction  and  effect  thereof,  conversion 
takes  place: 

(a)  In  the  case  of  -wills,  from  the  death  of  the 

testator. 

(b)  In  the  case   of  deeds  and  other  instruments 

inter  vivos,  from  the  date  of  their  execution 
and  delivery. 

•  Salisbury  v.  Slade,  160  N.  Y.  278,  54  N.  E.  741;   Lent  v.  Howard, 
89  N.  Y.  160;  Power  T.  Cassldy,  79  N.  Y.  602,  35  Am.  Rep.  550;   Fish- 
er v.  Banta,  66  N.  Y.  468;   In  re  Page's  Estate,  75  Pa.  87;   Gould  v. 
Asylum,  46  Wis.  106,  50  N.  W.  422;   Wurts'  Ex'ra  v.  Page,  19  N    I. 
Eq.  365. 

o  Ford  v.  Ford,  70  Wla.  19,  33  N.  W.  188,  5  Am.  St  Rep.  117; 
Dodge  v.  Williams,  46  Wls.  70,  1  N.  W.  92,  50  N.  W.  1103;  Fahne- 
•tock  T.  Fabnestock,  152  Pa.  56,  25  Atl.  313. 

T  Crane  v.  Holies,  49  N.  J.  Eq.  373,  24  Atl.  237;  Stagg  v.  Jackson, 
1  N.  Y.  206;  Ford  v.  Ford,  70  Wis.  19,  49.  33  N.  W.  188,  5  Am.  St 
Rep.  117;  Mellon  v.  Reed,  123  Pa.  1,  14,  15  Atl.  906. 

•  Curling  v.  May,  cited  3  Atk.  255;  Bourne  v.  Bourne,  2  Hare,  35; 
Moncrlef  v.  Ross,  50  N.  Y.  431;  Clift  v.  Moses,  116  N.  Y.  144,  157.  22 
N.  E.  393;   In  re  McComb,  117  N.  Y.  378.  22  N.  E.  1070;   Matthews  v. 
Studley,  17  App.  Div.  303,  45  N.  Y.  Supp.  201;   Haward  v.  Peavey, 
128  111.  430,  21  N7.  E.  503,  15  Am.  St  Rep.  126;   Greenough  v.  Small, 
137  Pa.  128,  20  Atl.  396;    In  re  Machemer's  Estate,  140  Pa.  544,  21 
Atl.  441;   Mills  v.  Harris,  104  N.  C.  629,  10  S.  E.  704. 

•  Policy  T.  Seymour,  2  Younge  &  C.  70S. 


§    99)  EQUITABLE   CONVERSION   DEFINED.  229 

The  will  or  other  instrument  may  contain  an  express  di- 
rection as  to  when  the  conversion  will  take  place,  in  which 
case  such  direction  must  necessarily  control.1  And  if  the 
will  creates  a  trust  upon  the  happening  of  a  specified  event, 
which  might  or  might  not  happen,  then  the  conversion  takes 
place  only  when  that  event  happens,  and  at  that  time  takes 
place  as  though  there  had  then  been  an  absolute  direction  to 
sell.2  And  if  it  appear  by  the  will  that  the  conversion  is 
only  to  take  place  for  certain  purposes,  the  property  will  be 
treated  as  converted  for  those  purposes,  and  beyond  that  it 
will  be  regarded  as  unchanged.3  Whether  the  conversion 
takes  place  at  the  death  of  the  testator  or  at  some  later  s 
period  depends  upon  his  intention.  Unless  the  will  in  terms 
provides  for  a  sale  at  a  specified  future  time,  or  creates  a 
trust  with  the  discretion  to  sell  only  on  the  happening  of 
a  designated  event,  which  may  or  may  not  happen,  the  con- 
version will  be  deemed  to  take  place  as  of  the  date  of  the 
testator's  death.4  A  direction  in  a  will  to  sell  real  estate, 
and  distribute  the  proceeds,  works  an  equitable  conversion, 
so  far  as  the  legatee's  rights  are  concerned,  as  of  the  date 
of  testator's  death,  although  the  time  of  sale  is  postponed 
until  the  termination  of  a  life  estate  created  by  the  will.5 

§  99.  i  Moncrief  v.  Ross,  50  N.  Y.  431,  3  Keener,  Oas.  Eq.  960; 
McClure's  Appeal,  72  Pa.  414;  Keller  v.  Harper,  64  Md.  74,  1  Atl. 
65;  Massey  v.  Modawell,  73  Ala.  421. 

»  McClure's  Appeal,  72  Pa.  414;  Pom.  Eq.  Jur.  §  1162. 

s  Ackroyd  v.  Smithson,  1  Brown,  Ch.  503;  Cruse  v.  Barley,  3  P. 
Wms.  20;  Chltty  v.  Parker,  2  Ves.  Jr.  270;  Taylor  v.  Taylor,  3  De 
Gex,  M.  &  G.  190;  King  v.  King,  13  R.  I.  501. 

*  Mutual  Life  Ins.  Co.  v.  Bailey,  19  App.  Div.  204,  45  N.  T.  Supp. 
1069;  Fisher  v.  Banta,  66  N.  Y.  468.  For  other  cases  as  to  the  time 
when  conversion  will  take  place,  see  Cook's  Ex'rs  v.  Cook's  Adm'r, 
20  N.  J.  Eq.  875;  Jones  v.  Caldwell,  97  Pa.  42;  McClure's  Ap- 
peal, 72  Pa.  414;  Ramsey  v.  Hanlon  (C.  C.)  33  Fed.  425;  Lent  v. 
Howard,  89  N.  Y.  169;  Underwood  v.  Curtis,  127  N.  Y.  523,  28  N.  E. 
585;  Button  v.  Pugh,  45  N.  J.  Eq.  426,  18  Atl.  207;  Reiff  v.  Strite, 
54  Md.  298;  Carr  v.  Branch,  85  Va.  597,  8  S.  E.  476. 

»  Allen  v.  Watts,  98  Ala.  384,  11  South.  646;  Ramsey  v.  Hanlon  (C. 
C.)  33  Fed.  425;  In  re  Thomman's  Estate,  161  Pa.  444,  29  Atl.  84. 
In  Cropley  v.  Cooper,  16  Wall.  167,  22  L.  Ed.  109,  it  is  said:  "The 
real  estate  having  been  directed  by  the  will  to  be  converted  into 
money,  it  is  to  be  regarded  for  all  the  purposes  of  this  case  as  if  it 
were  money  at  the  time  of  the  death  of  testator.  That  it  was  not  to 
be  sold  until  after  the  termination  of  two  successive  life  estates  does 
not  affect  the  application  of  the  principle:  Equity  regards  sub- 


230  CONVERSION  AND    RECONVERSION.  (Ch.   10 

Contracts  and  Other  Instruments  Inter  Vwos. 

As  a  general  rule,  in  a  deed  the  conversion  takes  place 
from  the  date  of  its  execution  and  delivery,  notwithstanding 
the  fact  that  the  deed  contains  a  trust  for  sale  which  is  not 
effective  until  after  the  settlor's  death.8  This  rule  is  not  to 
apply  to  mortgages  or  other  instruments,  where  there  can 
be  no  intention,  expressed  or  implied,  to  effect  a  conver- 
sion,— as,  where  a  mortgage  provided  that  the  surplus  mon- 
eys arising  from  the  sale  of  the  mortgaged  premises  should 
be  paid  to  A.,  his  executors  or  administrators.  A.  died  in- 
testate, and  afterwards  B.  sold  the  property  under  the  pow- 
er of  sale  for  a  sum  which  exceeded  the  mortgage  money 
and  interest.  The  court  held  that  the  surplus  money  was 
real  estate.  If  the  estate  had  been  sold  by  the  mortgagee 
in  the  lifetime  of  the  mortgagor,  the  surplus  would  certain- 
ly have  been  the  personal  estate  of  the  mortgagor,  and  his 
next  of  kin  would  have  been  entitled  thereto  after  his  death. 
But,  since  the  estate  was  not  sold  at  the  time  of  the  death^ 
of  the  mortgagor,  the  equity  of  redemption  descended  to 
his  heir,  and  he  is  entitled  to  the  surplus.7 

A  contract  which  contains  an  option  for  the  sale  of  land 
may  work  a  conversion  of  the  land,  although  the  option  may 


stance,  and  not  form,  and  considers  that  as  done  which  Is  required 
to  be  done.  The  sale  being  directed  absolutely,  the  time  Is  Iramnto- 
rlal."  See,  also,  Wurts'  Ex'rs  v.  Page,  19  N.  J.  Eq.  365;  Hooker  v. 
Gentry,  3  Mete.  (Ky.)  463;  Tazewell  v.  Smith's  Adm'r,  1  Rand.  (Va.) 
313,  10  Am.  Dec.  533;  In  re  Bright's  Appeal,  100  Pa.  602.  In  New 
York  the  rule  is  that,  If  testator  devises  a  life  estate  in  land,  and 
directs  a  sale  on  Its  expiration,  the  conversion  takes  place  on  the 
termination  of  the  life  estate,  and  not  on  testator's  death.  Moncrlef 
T.  Ross,  50  N.  Y.  431,  3  Keener,  Cas.  Eq.  960;  Savage  v.  Burnham, 
17  N.  Y.  561,  569.  But,  if  the  direction  to  sell  is  absolute,  the 
fact  that  the  executors  are  vested  with  a  discretionary  power  as 
to  the  time  of  sale  does  not  prevent  the  conversion  from  taking 
place  as  of  the  date  of  testator's  death.  "When  the  time  of  sale 
Is  not  necessarily  postponed  to  a  specified  future  time,  or  the  hap- 
pening of  a  designated  event,  the  conversion  takes  place  at  the 
testator's  death;  the  distributees  taking  their  interests  as  money, 
not  land."  Underwood  v.  Curtis,  127  N.  Y.  523,  28  N.  E.  585;  Rob- 
ert v.  Corning,  89  N.  Y.  225,  239;  Fraser  v.  Trustees,  124  N.  Y.  479, 
26  N.  B.  1034. 

•  Griffith  v,  Ricketts,  7  Hare,  299,  311. 

t  Wright  T.  Rose,  2  Sim.  &  S.  323;  Snell,  Eq.  173. 


§   99)  EQUITABLE   CONVERSION   DEFINED.  231 

not  be  exercised  until  after  the  death  of  the  vendor.8 
Whenever  the  vendee  exercises  his  option,  the  conversion, 
as  to  the  parties  claiming  under  the  vendor's  title,  dates  back 
to  the  time  of  the  execution  of  the  contract.9  This  same 
principle  is  applicable  in  the  case  of  a  lease  of  land  for  a  long 
term  of  years,  with  an  option  in  the  lessee  to  purchase  at 
any  time.  On  exercising  the  option  after  the  lessor's  death, 
the  conversion  of  the  lessor's  interest  in  the  land  relates 
back  to  the  date  of  the  lease,  and  the  purchase  money  goes 
to  the  lessor's  personal  representatives.  This  rule  is  firm- 
ly established  by  the  weight  of  English  authority,  and  has 
been  followed  and  favorably  considered  in  the  courts  of  this 
country.10  A  recent  Ohio  case  holds,  however,  that  the 
conversion  takes  place  when  the  option  is  exercised,  and 
that  the  purchase  money  will  go  to  lessor's  heirs  as  real 
property,  instead  of  to  the  lessor's  personal  representa- 
tives.11 But  this  case  does  not  seem  to  be  based  on  the 
weight  of  judicial  authority,  and  is  evidently  decided  with- 
out reference  to  a  long  line  of  cases  arising  under  contracts 
for  the  optional  purchase  of  real  property.  It  is  evident, 
however,  that  the  courts  are  reluctant  to  extend  the  rule. 
Its  operation  may  be  productive  of  hardship,  since  the  op- 
tion might  not  be  exercised  for  many  years  after  the  lessor's 
death.  In  a  comparatively  recent  English  case  it  was  held 
that  its  operation  should  be  confined  to  the  question  of  con- 
version as  between  the  heir  or  devisee  of  the  vendor  or  les- 
sor and  his  personal  representatives,  and  that  it  does  not 
apply  as  between  the  vendor  and  purchaser,  or  lessor  and 
lessee.  As  between  these  parties,  the  conversion  cannot 
take  place  until  the  option  has  been  declared.12 

«  Lawes  v.  Bennett,  1  Cox,  167;  Townley  v.  Bed  well,  14  Ves.  591; 
D'Arras  v.  Keyser,  26  Pa.  249. 
»  Pom.  Eq.  Jur.  §  1163. 

10  Lawes  v.  Bennett,  1  Cox,  167;  Emuss  v.  Smith,  2  De  Gex  &  S. 
722. 

11  Smith  v.  Loewensteln,  50  Ohio  St.  346,  34  N.  E.  159.      , 

12  Edwards  v.  West,  7  Ch.  DIv.  858,  862,  863. 


232  CONVERSION    AND    RECONVERSION.  (Ch.   10 


EFFECT  OF  CONVERSION. 

100.  By  the  doctrine  of  conversion,  land  directed 
or  agreed  to  be  sold,  although  yet  unsold, 
is  to  be  treated  in  equity  as  money;  money 
directed  or  agreed  to  be  laid  out  in  land  is 
to  be  treated  in  equity  as  land.  Although 
there  has  not  been  an  actual  change  in  the 
nature  of  the  property,  all  the  legitimate 
consequences  •which  -would  follow  such  a 
change  will  result. 

QUALIFICATION— (a)  It  affects  only  those  per- 
sons who  claim  under  the  instrument,  or 
directly  from  or  under  its  author. 

(b)  Conversion  takes  place  only  for  the  purpose 
of  the  instrument. 

In  determining  the  rights  of  claimants  to  land  directed 
or  agreed  to  be  sold,  such  land,  while  still  unsold,  will  be 
treated  as  personal  property.  It  will  pass  under  a  general 
gift  or  bequest  of  personal  estate,1  and,  in  the  absence  of 
a  will,  it  will  go  to  the  personal  representatives  as  money, 
to  be  distributed  to  the  next  of  kin  after  the  payment  of  the 
debts  of  the  decedent.2  Such  land  will  be  included  in  a  gen- 
eral residuary  bequest,8  but  not  in  a  general  devise  of  land.4 
It  may  be  sold  and  transferred  by  parol,  as  any  other  per- 
sonal property,  notwithstanding  the  statute  of  frauds  relat- 

f  100.  i  Fisher  v.  Banta,  60  N.  Y.  468;  Welsh  v.  Crater,  32  N.  J. 
Eq.  177;  Dodge  v.  Williams,  46  Wis.  70,  1  N.  W.  92,  50  N.  W.  1103; 
Gould  v.  Orphan  Asylum,  46  Wis.  106,  50  N.  W.  422;  Chandler  v.  Po- 
cock,  16  Ch.  DIv.  648. 

*  Moncrief  v.  Ross,  50  N.  Y.  431,  3  Keener,  Cas.  Eq.  960;    Van 
Vechten  v.  Keator,  63  N.  Y.  52;  Hood  v.  Hood,  85  N.  Y.  561;  Wurts' 
Ex'rs  v.  Page,  19  N.  J.  Eq.  365;   Welsh  v.  Crater,  32  N.  J.  Eq.  177; 
MeClure's  Appeal,  72  Pa.  414;    In  re  Eby's  Appeal,  84   Pa.   241; 
Jones  v.  Ca  hi  well.  97  Pa.  42;    Ferguson  v.  Stuart's  Ex'rs,  14  Ohio, 
140,  146;  Collier  r.  Collier's  Ex'rs,  3  Ohio  St  869;  Ex  parte  McBee, 
63  N.  C.  332. 

•  Stead  v.  Newdigate,  2  Mer.  521. 
«  Elliott  y.  Fisher,  12  Sim.  506. 


§   100)  EFFECT  OF    CONVERSION.  233 

ing  to  land ; 5  and  an  alien  may  take  the  proceeds  of  land 
directed  to  be  sold  for  his  benefit,  though  he  could  not  have 
taken  the  land  under  a  devise.0  On  the  other  hand,  money 
directed  or  agreed  to  be  laid  out  in  land  will  pass  under  a 
general  devise  of  land,7  and,  in  the  absence  of  a  will,  will 
descend  to  the  heir  as  real  estate.8  And  such  money  will 
pass  to  the  heirs  of  the  person  for  whose  benefit  the  direc- 
tion is  made,  even  if  he  dies  before  the  investment  actually 
takes  place.9  And,  if  money  is  directed  to  be  laid  out  for 
the  benefit  of  a  married  woman,  her  husband  is  entitled 
to  an  estate  by  curtesy  in  it.10  It  has  also  been  held  in 
some  states  that  a  widow  has  a  dower  in  lands  which  the 
husband  has  contracted  to  purchase,  where  he  died  before 
the  deed  was  delivered.11 

Qualifications. 

The  doctrine  of  conversion  is  subject  to  certain  qualifi- 
cations in  its  application.  It  is  not  effectual  as  determin- 
ing the  rights  of  persons  who  have  no  interest  in  the  prop- 
erty under  or  through  the  instrument,  or  who  do  not  claim 


»  Mellon  v.  Reed,  123  Pa.  1,  15  Atl.  906. 

« Du  Hourmelin  v.  Sheldon,  1  Beav.  79;  Craig  v.  Leslie,  3 
Wheat.  563,  4  L.  Ed.  460;  De  Garante  v.  Gott,  6  Barb.  (N.  Y.)  492, 
497. 

T  Greenhill  v.  Greenhill,  2  Vern.  679. 

s  Hawley  v.  James,  5  Paige  (N.  Y.)  318;  Gott  v.  Cook,  7  Paige  (N. 
Y.)  521,  534;  Tayloe  v.  Johnson,  63  N.  C.  381;  Collins  v.  Champ's 
Heirs,  15  B.  Mon.  (Ky.)  118,  61  Am.  Dec.  179. 

9  Scudamore  Y.  Scudamore,  Finch,  Free.  543,   3  Keener,  Cas.  Eq. 
947;  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  171. 

10  Sweetapple  v.  Bindon,  2  Vern.  536. 

11  Church  v.  Church,  3  Sandf.  Ch.  (N.  Y.)  434;  Smiley  v.  Wright, 
2  Ohio,  512;  Davenport  v.  Farrar,  2  111.  314;  Reed  v.  Whitney,  7 
Gray  (Mass.)  553;   Lobdell  v.  Hayes,  4  Allen  (Mass.)  187;   Bow  en  v. 
Lingle,  119  Ind.  560,  20  N.  E.  534;  Joseph  v.  Fisher,  122  Ind.  399, 
23  N.  E.  856;   Young  v.  Young,  45  N.  J.  Eq.  27,  16  Atl.  921;    Glenn 
v.  Clark,  53  Md.  580;  WTarford  v.  Noble,  9  Biss.  320,  2  Fed.  202.     So 
in  England  by  statute,  Macq.  Husb.  &  W.  (3d  Ed.)  123.     But  widow 
must  pay  her  share  of  unpaid  purchase  money.     Warford  v.  Noble, 
supra.    And  a  simple  entry  under  a  parol  contract  without  pay- 
ment of  purchase  price  will  not  give  dower.    Latham  v.  McLain,  64 
Ga.  320.    But  it  is  held  in  other  jurisdictions  that  where  there  is 
a  mere  equitable  right  to  compel  a  conveyance  which  husband  never 
enforces,  there  is  no  seisin  to  give  dower.    Bowman  v.  Bailey,  20 
S.  C.  550;  Cornog  v.  Cornog,  3  Del,  Ch.  407. 


234  CONVERSION    AND    RECONVERSION.  (Ch.    10 

directly  under  or  through  its  author.1*  Nor  is  it  true  that 
the  property  is  to  be  treated  for  all  purposes  as  converted. 
Except  as  required  for  the  purposes  specified  in  the  instru- 
ment, the  property  will  be  treated  as  it  actually  is.  As  an 
example,  it  has  been  held  that  a  direction  in  a  will  to  con- 
vert real  estate  into  money  does  not  actually  change  the 
character  of  the  land,  so  as  to  authorize  its  sale  as  person- 
alty by  one  of  the  executors  without  the  concurrence  of  his 
co-executor;  the  court  saying:  "There  may  have  been  a 
conversion  of  this  realty  into  personalty  for  many  purposes, 
but  not  for  all  purposes.  It  physically  remained  real  estate, 
taxable  as  such,  controllable  as  such,  and  it  could  only  be 
conveyed  as  such ;  and  the  rules  of  law  generally  applica- 
ble to  real  estate  remained  applicable  to  this."  18  And  an 
equitable  conversion  of  realty  into  personalty  for  distribu- 
tion among  the  testator's  children  does  not  prevent  the  ti- 
tle to  the  land,  on  the  death  of  the  testator,  vesting  in  his 
children  as  heirs,  until  its  actual  conversion;  and,  conse- 
quently, it  will  be  subject  to  the  lien  of  a  judgment  against 
any  one  of  them.14  Where  a  will  directs  the  conversion  of 
realty,  the  husband  of  one  of  the  persons  entitled  to  share 
in  the  proceeds  cannot  dispose  of  her  interests  in  the  same 
manner  as  he  can  her  personal  property.18  On  the  other 
hand,  where  money  is  directed  to  be  laid  out  in  land,  though 
to  be  treated  as  a  devise  as  between  the  legatees,  heirs,  and 
personal  representatives,  is,  nevertheless,  a  personal  asset  so 
far  as  the  testator's  creditors  are  concerned,  and  must  be 


«  Pom.  Eq.  Jur.  §  1168. 

»»  Wilder  v.  Ranney,  95  N.  Y.  712,  3  Keener,  Gas.  Eq.  992.  See, 
also,  Crowley  v.  Hicks,  72  Wls.  539,  543,  40  N.  W.  151,  where  the 
same  conclusion  was  reached.  But  see  Mellon  v.  Reed,  123  Pa,  1, 
15  Atl.  906,  where  It  was  held  that  real  estate  directed  to  be  convert- 
ed may  be  conveyed  as  personal  property. 

n  Eneberg  v.  Carter,  98  Mo.  647,  12  S.  W.  522.  But  it  has  been 
held  otherwise  where  the  title  to  the  land  vested  in  a  trustee. 
Hunter  v.  Anderson,  152  Pa.  386,  25  Atl.  538. 

"Franks  y.  Bollans,  3  Ch.  App.  717,  718,  in  which  case  Sir  W. 
Page  Wood,  L.  J.,  says:  "Until  the  land  is  sold,  this  court,  for  many 
purposes,  treats  it  as  money;  but  no  authority  has  been  cited,  and 
I  should  have  been  surprised  if  any  authority  could  have  been  cited, 
to  show  that  the  husband  could,  by  any  act  of  his,  before  the  sale, 
bar  bis  wife's  right  to  her  share  of  it" 


§    101)  CONVERSION    BY    PARAMOUNT    AUTHORITY.  235 

applied  like  other  personal  assets  to  the  payment  of  his 
debts.19 


CONVERSION  BY  PARAMOUNT  AUTHORITY. 

101.  Conversion  by  paramount  authority  includes 
the  compulsory  sale  of  lands  to  corpora- 
tions and  others  for  public  purposes,  and 
the  sale  of  land  by  order  of  the  court  for 
the  purpose  of  settling  estates  of  infants  and 
incompetents,  for  partition  and  the  pay- 
ment of  debts  of  decedents.  The  general 
rule  in  such  cases  is  that  the  doctrine  of 
equitable  conversion  is  applicable,  and  that 
the  proceeds  of  the  sale  should  be  treated 
as  real  estate. 

The  questions  arising  under  this  branch  of  the  doctrine 
differ  from  those  already  discussed.  The  question  which 
arises  under  the  ordinary  form  of  conversion  is  whether  the 
property,  though  not  actually  changed  in  its  nature,  is  to  be 
treated  as  converted.  We  are  now  to  determine  whether 
the  propers  can  be  treated  as  not  converted,  although  its 
nature  has  been  actually  changed.  Where,  under  a  statute, 
a  railroad  corporation  has  given  notice  of  its  intention  to 
take  land,  to  the  owner  in  fee,  the  notice  itself  does  not  ef- 
fect a  conversion;  but,  where  the  purchase  price  is  agreed 
on,  a  conversion  is  effected,  although  the  purchase  price  has 
not  been  paid.  The  owner's  interest  becomes  money,  and  is 
to  be  treated  as  such.1  And  where  the  land  is  not  volun- 
tarily sold,  but  is  taken  by  virtue  of  compulsory  proceed- 
ings, and  the  award  is  paid  into  court,  the  money  so  paid  is 
deemed  real  estate  until  taken  out  by  some  person  entitled 
thereto.8  In  many  of  the  earlier  English  cases  the  rule  was 
laid  down  that,  where  land  was  sold  under  an  order  of  the 

»«  McFadden  v.  Hefley,  28  S.  C.  317,  5  S.  E.  812. 

§  101.  i  Haynes  v.  Haynes,  1  Drew  &  S.  426;  In  re  Battersea 
Park  Acts,  9  Jur.  (N.  S.)  883. 

2  Ex  parte  Hawkins,  13  Sim.  569;  In  re  Manchester  &  S.  Ry.  Co., 
19  Beav.  365;  Regent's  Canal  Co.  v.  Ware,  23  Beav.  575. 


236  CONVERSION    AND    RECONVERSION.  (Ch.   10 

court  or  by  a  trustee  under  a  power  of  sale,  and  the  pur- 
chase money  exceeded  the  amount  required  for  the  partic- 
ular purpose  for  which  the  sale  was  made,  the  excess,  though 
in  form  money,  remained,  as  before  the  sale,  impressed 
with  the  character  of  land,  and  would  descend  as  such.3 
But  this  rule  has  been  questioned,  and  materially  modified, 
by  subsequent  English  cases.  In  the  case  of  Steed  v. 
Preece,4  Jessel,  M.  R.,  ruled  that,  if  a  conversion  is  rightly 
made,  whether  by  a  court  or  a  trustee,  all  the  consequences 
of  conversion  must  follow.  There  is  no  equity  in  favor  of 
the  heir,  or  any  one  else,  to  take  the  property  in  any  other 
form  than  that  in  which  it  is  found.  The  American  cases 
are,  for  the  most  part,  to  the  same  effect.  In  a  recent  Ar- 
kansas case  8  the  supreme  court  declared  that,  where  land  is 

•  Cooke  v.  Dealey,  22  Beav.  196;  Jermy  v.  Preston,  13  Sim.  356; 
Dyer  v.  Dyer,  34  Beav.  5O1;  Johnson  v.  Webster,  4  De  Gex,  M.  &  G. 
484.    And  see  Collins  v.  Champ's  Heirs,  15  B.  Mon.  (Ky.)  118,  61 
Am.  Dec.  179. 

•  L.  R.  IS  Eq.  192.    In  this  case  real  estate  had  been  conveyed  in 
trust  for  two  infants  as  tenants  in  common,  with  cross  remainders 
between  them.    A  suit  was  Instituted  for  the  administration  of  the 
trust,  a  decree  of  sale  made,  the  estate  sold,  and  the  purchase 
money  paid  into  court.    Half  the  fund  was  paid  to  one  of  the  ten- 
ants in  common,  who  had  attained  majority,  and  the  other  half  was 
carried  over  to  the  separate  account  of  the  other  co-tenant,  who 
would  have  been  absolutely  entitled  to  that  moiety  If  he  had  at- 
tained majority.    He  died  before  that  time,  however,  and  the  sur- 
viving tenant  in  common  claimed  that  the  money  took  the  place  of 
the  land  which  had  been  sold,  and  that  he  was  therefore  entitled  to 
It   by   virtue   of   the  cross   remainder.    But   the  court   held   that 
the  fund  must  be  treated  as  money,  and  that  he  was  not  entitled  to 
take  it    This  case  was  followed  in  Arnold  v.  Dixon,  L.  R.  19  Eq. 
113;  Foster  v.  Foster,  1  Ch.  Dlv.  588;  Wallace  v.  Greenwood,  16  Ch. 
Div.  362;  and  Hyett  v.  Mekin,  25  Ch.  Dlv.  735. 

•  In  re  Simmons,  55  Ark.  485,  18  S.  W.  933.    Another  instructive 
recent  decision  on  this  subject  is  Wentz's  Appeal,  126  Pa.  541,  17 
Atl.  875,  3  Keener,  Gas.  Eq.  995.    There  land  belonging  to  a  person 
who  died  Intestate  was  sold  in  partition  proceedings,  and  the  pro- 
ceeds were  set  apart  for  the  widow's  benefit  In  lieu  of  dower.    One 
of  the  children  died  during  minority,  and  in  the  lifetime  of  the 
widow;  and,  on  the  widow's  death,  the  question  arose  as  to  whether 
the  deceased  child's  share  in  the  fund  would  descend  to  her  heirs 
as  land,  or  whether  it  should  be  paid  to  her  personal  representatives 
as  personal  property.    The  court  said:    "It  Is  error  to  assume  that 
the  proceeds  of  the  sale  in  partition  are  real  estate,  and  require  a 
positive  act  of  reconversion  to  get  them  back  into  their  character 
as  money.    •    •    •    The  money  never  Is  real  estate  In  law  any 


§    101)  CONVERSION    BY    PARAMOUNT    AUTHORITY.  237 

sold  pursuant  to  a  decree  of  partition,  the  proceeds,  on  the 
death  of  the  owner,  though  he  is  an  infant,  must  be  dis- 
tributed as  personalty,  and  do  not  descend  to  his  heirs.  The 
court  said:  "There  was  a  conversion  of  land  into  person- 
alty, and  it  must  go  in  the  condition  it  is  found  at  the  death 
of  the  person  in  whom  it  was  vested,  to  his  personal  repre- 
sentative, unless  the  heir  can  show  an  equity  in  his  favor  for 
reconversion.  But  the  heir,  equally  with  the  distributees,  is 
a  volunteer ;  and  when  he  stands  on  his  naked  right  as  heir, 
uncoupled  with  any  other  fact,  there  is  no  equity  in  his  favor 
as  against  the  distributee.  The  equities  being  equal,  or, 
rather,  there  being  no  equities,  the  money  must  go  in  the 
form  in  which  it  is  at  the  death  of  the  owner;  that  is,  as 
personalty." 

It  seems  to  be  well  settled  that  the  courts  will  not  direct  a 
conversion  of  property  belonging  to  an  infant  or  lunatic, 
unless  there  is  good  cause  therefor,  and  then  only  so  far  as 
is  necessary  to  accomplish  the  particular  purpose.  Notwith- 
standing the  cases  above  referred  to,  there  seems  to  be  plen- 
ty of  authority  for  the  rule  that,  where  lands  of  an  infant  or 
lunatic  are  sold  by  virtue  and  order  of  the  court,  the  sur- 

more  than  in  fact,  but  for  certain  purposes,  and  within  certain 
limits  it  is  treated  as  if  it  were  real  estate.  The  purpose  is  to  pre- 
serve the  inheritable  quality  of  the  estate,  so  that  the  title  may  not 
be  diverted  from  the  previous  owner,  and  the  limit  is  the  first  devo- 
lution. The  whole  doctrine  is  the  creature  of  equity  for  a  specific 
purpose,  and,  when  that  purpose  is  accomplished,  the  rule  ceases  to 
operate.  So  far,  therefore,  from  the  money  being  actually  real  es- 
tate, and  requiring  a  positive  act  of  reconversion  to  restore  it  to  its 
natural  character  of  money,  it  never  is  real  estate,  and  is  only 
treated  as  such  within  a  limit  which  all  the  cases  agree  is  the  first 
transmission."  It  was,  therefore,  held  that  the  purpose  of  con- 
structive conversion  is  fully  accomplished  when  the  child's  share 
vested  in  her  in  remainder  after  her  mother's  life  interest,  and  that 
the  fund,  on  the  child's  death,  would  pass  as  personalty  to  her  per- 
sonal representatives.  The  Massachusetts  doctrine  has  been  stated 
to  be  that,  where  real  estate  is  rightly  converted  into  money,  the 
money  is  impressed  with  the  character  of  land,  until  it  reaches  one 
who,  if  it  had  remained  real  estate,  would  take  it  beneficially;  that 
is,  to  his  own  use  absolutely,  or  with  a  power  to  dispose  of  it  abso- 
lutely, or  make  it  his  own  to  all  purposes,  and  it  will  then  be  his 
own  absolutely.  Holland  v.  Cruft,  3  Gray  (Mass.)  162;  Holland  v. 
Adams,  3  Gray  (Mass.)  188,  191;  Hovey  v.  Dary,  154  Mass.  7,  27  N. 
E.  659;  Emerson  v.  Cutler,  14  Pick.  (Mass.)  108. 


238  CONVERSION   AND    RECONVERSION.  (Ch.  10 

plus  of  the  proceeds  always  remains  real  estate.*  In  a 
recent  New  Jersey  case  it  was  held  that,  when  the  land  of 
an  infant  is  converted  into  money  by  order  of  the  court,  and 
the  infant  dies  before  attaining  his  majority,  the  fund  will 
be  treated  as  real  estate,  and  descend  to  the  heirs  at  law  of 
the  infant.7  In  many  of  the  states — as  in  Massachusetts — it 
is  provided  by  statute  that  in  every  sale  of  the  real  estate  of 
a  decedent  by  an  executor  or  administrator  the  proceeds  re- 
maining on  the  final  settlement  of  the  accounts  shall  be  con- 
sidered as  real  estate.8  Under  such  a  statute  the  unex- 
pended balance  of  the  proceeds  of  the  sale  remaining  after 
the  payment  of  debts  should  be  paid  over  by  the  adminis- 
trator or  executor  to  the  persons  entitled  thereto.* 


TOTAL    OB   PARTIAL  FAILURE    OP   PURPOSES    FOR 
WHICH  CONVERSION  IS  DIRECTED. 

102.  TOTAL  FAILURE— Where  a  conversion  is 
directed  or  agreed  upon,  by  -will,  or  by 
deed,  or  other  instrument  inter  vivos, 
whether  of  land  into  money  or  money  into 
land,  if  the  objects  and  purposes  of  such 
conversion  have  totally  failed  before  the 
instrument  directing  the  conversion  came 
into  operation,  no  conversion  will  take  place, 
but  the  property  will  remain  in  its  original 
state,  and  will  result,  unchanged,  to  the 
heirs  or  personal  representatives  of  the  tes- 
tator, or  to  the  settlor  or  grantor,  or  his 
heirs  or  personal  representatives,  as  the  case 
may  be. 

•  In  re  Skeggs'  Settlement,  2  De  Gex,  J.  &  S.  533;  In  re  Bagot's 
Settlement,  31  Law  J.  Cb.  722;  Dixie  v.  Wright,  32  Beav.  662;  Oxen- 
den  v.  Lord  Compton,  2  Ves.  Jr.  69,  72;  Smith  v.  Bayright,  34  N.  J. 
Eq.  424. 

T  Wetherill  v.  Hough,  52  N.  J.  Eq.  683,  29  Atl.  592. 

•  Massachusetts,  Pub.  St.  c.  142,  9  9;  New  York,  Code  Civ.  Proc. 
|  2793.  subd.  10. 

»  Aduius  v.  Jones,  176  Mass.  185,  57  N.  E.  362. 


§§   102-103)      FAILURE    OF   PURPOSES    OF   CONVERSION.  239 

103.  PARTIAL  FAILURE— Where  the  failure  is 
partial,  and  the  direction  to  convert  is  con- 
tained in 

(a)  A  will,  the  conversion  takes  place   only  to 

such  extent  as  is  necessary  to  effect  the  pur- 
pose of  the  will;  and  the  undisposed-of  sur- 
plus, in  the  case  of  land,  to  be  converted 
into  personalty,  will  result  to  the  testator's 
heir  as  money;  and  in  the  case  of  money 
to  be  laid  out  in  land,  the  undisposed-of 
surplus  will  go  to  his  personal  represen- 
tatives. 

(b)  A  deed  or  other  instrument  inter  vivos,  the 

undisposed-of  surplus  results  to  the  grantor 
in  its  converted  state,  whether  land  is  to  be 
converted  into  money  or  money  into  land. 

Total  Failure. 

In  the  case  of  a  total  failure  of  the  objects  or  purposes 
for  which  the  conversion  is  directed  or  agreed  upon,  the 
rule  is  simple,  and  easily  applied.  A  simple  illustration  is 
where  land  is  devised  on  trust  to  be  sold  and  distributed  be- 
tween A.  and  B.,  and  both  die  during  the  testator's  lifetime. 
In  such  case  the  whole  object  and  purpose  of  the  testator 
in  directing  the  conversion  has  failed.  The  purpose  being 
to  divide  the  proceeds  of  the  sale,  and  there  being  no  one  to 
receive  any  share,  the  matter  is  in  the  same  position  as  if  no 
trust  to  sell  had  been  inserted  in  the  will,  and  the  land  de- 
scends to  the  heir.1  There  is  no  distinction  to  be  made  in 

S§  102,  103.  i  Haynes,  Eq.  347;  Hill  v.  Oook,  1  Ves.  &  B.  175;  Fitch 
v.  Weber,  6  Hare,  145.  In  Read  v.  Williams,  125  N.  Y.  560,  571,  26  N. 
E.  730,  732,  21  Am.  St.  Rep.  748,  752,  it  is  said:  "A  power  of  sale  in 
a  will,  however  peremptory  in  form,  if  it  can  be  seen  that  it  was  in- 
serted in  aid  of  a  particular  purpose  of  testator,  or  to  accomplish  his 
general  scheme  of  distribution,  does  not  operate  as  a  conversion 
where  the  scheme  or  purpose  fails  by  reason  of  illegality,  lapse,  or 
other  cause.  In  that  case  the  property  retains  its  original  character, 
and  it  goes  to  the  heirs  or  next  of  kin  as  the  case  may  be."  See,  also. 
Luffberry's  Appeal,  125  Pa.  513,  17  Atl.  447;  Moore  v.  Robbins,  53 
N.  J.  Eq.  137,  32  Atl.  379;  Slocum  v.  Slocum,  4  Edw.  Ch.  (N.  Y.)  613; 


240  CONVERSION    AND    RECONVERSION.  (Ch.   10 

the  case  of  a  will  and  a  deed.  As  was  said  by  Vice  Chan- 
cellor Wood:  "So  here,  if,  at  the  moment  when  the  gran- 
tor put  his  hand  to  this  deed,  the  purpose  for  which  the  con- 
version was  directed  had  failed, — for  instance,  if  he  had  given 
all  the  proceeds,  instead  of  a  part,  to  charitable  purposes, 
so  that  the  property  would  have  been  at  home  in  his  life- 
time,— the  court  would  have  regarded  it  as  if  no  conversion 
had  been  directed,  and  the  property  would  have  resulted  to 
the  grantor  as  real  estate."  a  And  where  the  will  or  deed 
directs  money  to  be  laid  out  in  land,  and  there  is  a  total  fail- 
ure of  purpose,  the  same  rule  applies,  and  the  money  direct- 
ed to  be  laid  out  descends  to  the  personal  representatives.* 

Partial  Failure  in  the  Case  of  a   Will. 

Where  there  is  only  a  partial  failure  of  purpose  of  the  will, 
and  it  is  necessary  to  sell  the  land  to  fulfill  the  effectual  por- 
tion of  such  purpose,  the  surplus  remaining  thereafter  will 
not  be  treated  as  personalty,  but  will  descend  to  the  heir  of 
the  testator.  It  was  the  intention  of  the  testator  to  deprive 
his  heir  of  the  land  for  a  particular  purpose,  and,  that  pur- 
pose having  partially  failed,  there  is  no  reason  why  such  sur- 
plus should  be  taken  away  from  him.  In  the  leading  case 
of  Ackroyd  v.  Smithson  *  this  rule  was  ably  discussed  and 
firmly  established.  It  was  there  held  that  the  heir  was  en- 
titled to  the  undisposed-of  surplus,  and  not  the  residuary 
legatee  or  next  of  kin,  on  the  ground  that  the  heir  takes 
every  interest  in  land  not  actually  disposed  of  by  his  an- 
cestor, and  that  the  testator  could  not  have  intended  to  de- 
prive him  of  the  real  estate  directed  to  be  converted,  except 
so  far  as  necessary  for  the  purposes  of  the  will.  Since  it  is 
necessary  to  sell  the  land  for  the  purposes  of  the  trust,  such 
surplus  will  belong  to  the  heir  as  money,  and  not  as  land, 

Wood  v.  Keyes,  8  Paige  (N.  Y.)  365;  Bogert  v.  Hertell,  4  Hill  (N.  T.) 
492;  Hetzel  v.  Barber,  09  N.  Y.  1;  Sweeney  v.  Warren,  127  N.  Y. 
426,  28  N.  B.  413,  24  Am.  St.  Rep.  468;  Davis'  Appeal,  83  Pa.  348. 

*  Clarke  v.  Franklin,  4  Kay  &  J.  257,  3  Keener,  Gas.  Eq.  082; 
Smith  v.  Claxton,  4  Madd.  492.  Evans*  Appeal,  63  Pa.  183,  seems  at 
variance  with  this  principle,  but  It  was  approved  In  Davis'  Appeal, 
83  Pa.  348. 

»  Cogan  v.  Stephens,  5  Law  J.  Ch.  17. 

«  Brown,  Ch.  503,  8  Keener,  Cas.  Eq.  977.  And  see  Wood  v.  Cone, 
7  Paige  (N.  Y.)  471;  Lindsay  v.  Pleasants,  39  N.  a  320;  Craig  v. 
Leslie,  8  Wheat  663,  4  L.  Ed,  400. 


§§    102-103)      FAILURE  OF   PURPOSES    OF   CONVERSION.  241 

and  will,  therefore,  go  to  his  personal  representatives,  even 
though  the  land  was  not  sold  during  his  lifetime,  provided  it 
be  actually  sold,  and  the  surplus  ascertained.6  Where  the 
will  directs  money  to  be  laid  out  in  land,  by  a  close  analogy 
to  the  reasoning  of  the  case  of  Ackroyd  v.  Smithson  the 
surplus  resulting  from  a  partial  failure  of  the  trust  will  de- 
volve upon  the  personal  representatives  of  the  testator  in 
its  original  form  of  personalty." 

Intention  of  Testator  to  Convert  Out  and  Out. 

The  rights  of  heirs  to  take  the  undisposed-of  surplus 
where  there  is  a  partial  failure  of  the  purposes  for  which 
the  conversion  is  directed  are  affected  by  the  declared  in- 
tention of  the  testator  as  expressed  in  the  will.  If  there  is 
an  intention  expressed  to  convert  realty  into  personalty  for 
the  particular  purposes  of  the  will,  the  heir  will  take ;  but,  if 
there  is  an  intention  to  convert  "out  and  out,"  as  it  is  called, 
— that  is,  to  change  the  character  of  the  property  for  all 
purposes  and  to  all  intents, — the  heir  will  not  take.  Unless 
the  testator  has  sufficiently  declared  his  intention,  not  only 
that  the  realty  shall  be  converted  into  personalty  for  the  pur- 
poses of  the  will,  but,  further,  that  the  proceeds  of  the  sale  of 
the  real  estate  shall  be  taken  as  personalty,  whether  such 
purposes  take  effect  or  not,  so  much  of  the  real  estate  or  the 
proceeds  thereof  as  is  not  effectually  disposed  of  by  the  will 
at  the  time  of  the  testator's  death  will  result  to  the  heir. 
But  every  conversion,  however  absolute  in  its  terms,  will 
be  deemed  a  conversion  for  the  purposes  of  the  will  only, 
unless  the  testator  distinctly  indicates  that  it  is,  on  the  fail- 
ure of  those  purposes,  to  prevail  as  between  the  persons  on 
whom  the  law  casts  the  real  and  personal  property  of  an 
intestate,  namely,  the  heir  and  next  of  kin.7  And  where  a 
sale  of  real  estate  is  directed,  and  the  proceeds  thereof  are 
to  be  blended  with  personal  estate  for  an  express  purpose, 

»  Snell,  Eq.  p.  183;  Wright  v.  Wright,  16  Ves.  188;  Jessopp  v.  Wat- 
Bon,  1  Mylne  &  K.  665;  Wall  v.  Colshead,  2  De  Gex  &  J.  683.  And 
Bee  Pom.  Eq.  Jur.  §  1171. 

«  Cogan  v.  Stephens,  5  Law  J.  Oh.  17;  Id.,  1  Beav.  482,  note; 
Hawley  v.  James,  5  Paige  (N.  Y.)  318;  Phillips  v.  Ferguson,  85  Va. 
509,  8  S.  E.  241,  1  L.  R.  A.  837,  17  Am.  St.  Rep.  78, 

T  Cruse  v.  Bailey,  3  P.  Wms.  22;  Note  of  Mr.  Cox,  Pitch  v.  Weber, 
6  Hare,  146:  Amphlett  v.  Parke,  2  Russ.  &  M.  221;  Taylor  T.  Taylor, 
3  De  Gex,  M.  &  G.  190;  Nagles'  Appeal,  13  Pa.  260,  261. 
EATON.EQ.— 16 


242  CONVERSION    AND    RECONVERSION.  (Ch.   10 

which  fails,  there  will  not  be  a  conversion  of  the  realty  into 
personalty  for  a  purpose  not  expressed,  so  as  to  give  it  to 
the  next  of  kin.8  But  where  land  has  been  directed  to  be 
sold,  and  out  of  the  proceeds  thereof  and  the  personal  estate 
combined,  debts  and  legacies  are  to  be  paid,  and  the  whole  of 
the  surplus  is  given  in  the  residuary  bequest  as  personalty, 
the  conversion  of  the  realty  will  be  absolute,  and  the  pro- 
ceeds of  the  land  will  go  to  the  residuary  legatee,  and  not  to 
the  heir.9  The  American  cases  are  not  as  strong  in  favor 
of  the  heir.  In  the  case  of  Craig  v.  Leslie  10  it  was  held 
"that,  if  the  intent  of  the  testator  appears  to  have  been  to 
stamp  upon  the  proceeds  of  the  land  described  to  be  sold 
the  quality  of  personalty,  not  only  to  subserve  the  particular 
purposes  of  the  will,  but  to  all  intents,  the  claims  of  the  heir 
at  law  to  a  resulting  trust  is  defeated,  and  the  estate  is  con- 
sidered to  be  personal." 

It  follows,  then,  that  blending  the  proceeds  of  the  realty 
and  personalty  in  a  common  fund,  for  all  the  purposes  of 
the  will,  though  some  of  them  fail,  will  render  the  conver- 
sion absolute,  and  change  the  devolution  of  the  undisposed- 
of  surplus.11 

Partial  Failure  in  the  Case  of  a  Deed. 

There  is  a  material  distinction  between  conversion  under 
wills  and  those  under  deeds  or  other  instruments  inter  vivos 
in  case  of  partial  failure  of  the  purposes  for  which  they  are 
directed.  Where  the  partial  failure  is  of  a  purpose  declared 
in  an  instrument  inter  vivos,  the  surplus  always  results  to 
the  grantor  in  its  converted,  and  not  in  its  original,  form. 
The  rule  has  been  stated  thus:  Where  real  estate  is  set- 
tled by  deed  upon  trust  to  sell  for  certain  specified  purposes, 
and  one  of  those  purposes  fails,  the  property  to  that  extent 
results  to  the  settlor  as  personalty  from  the  moment  the 
deed  is  executed,  whether  the  trust  for  sale  is  to  arise  in 
the  lifetime  of  the  settlor  or  not  until  after  his  decease.1* 

•  Jessopp  v.  Watson,  1  Mylne  &  K.  667. 

•  Mallabar  v.  Mallabar,  Gas.  t.  Talb.  78;  Hutcheson  v.  Hammond, 
8  Brown,  Ch.  128,  148;  Kennell  v.  Abbott,  4  Ves.  802;  Green  T.  Jack- 
•on,  2  Russ.  &  M.  238;  Salt  v.  Chattaway,  3  Bear.  576. 

10  3  Wheat.  563,  4  L.  Ed.  460. 

«  Craig  v,  Leslie,  3  Wheat  563,  4  L.  Ed.  460;  Morrow  v.  Brenlzer, 
2  Rawle  (Pa.)  185;  Burr  v.  Sim,  1  Whart.  (Pa.)  252,  29  Am.  Dec.  48. 
"  Clarke  v.  Franklin,  4  Kay  &  J.  203,  3  Keener.  Can.  2q.  982. 


§    104)  DOUBLE   CONVERSION.  243 

The  reason  for  the  distinction  between  wills  and  instruments 
inter  vivos,  in  this  respect,  is  found  in  the  fact  that,  while  a 
conversion  directed  by  a  will  does  not  take  place  until  the 
death  of  the  testator,  in  the  case  of  a  deed  or  other  instru- 
ment inter  vivos  the  conversion  is  effected  from  the  time  of 
the  execution  of  such  instrument ;  and  the  rights  of  the  par- 
ties, and  the  character  in  which  the  property  is  taken  by 
them,  are  to  be  determined  according  to  that  conversion.18 
If  the  deed  directs  a  conversion  of  money  into  land,  and 
there  is  a  partial  failure  of  purposes,  the  conversion  must  be 
carried  out  to  the  extent  of  such  purposes  as  are  effectual, 
and  the  undisposed-of  surplus  will  result  to  the  grantor  or 
his  heirs  as  land.  The  reason  of  this  rule  is  the  same  as  in 
the  case  of  a  direction  for  the  conversion  of  land  into 
money.1* 

DOUBLE  CONVERSION. 

104.  A  double  conversion  takes  place  where  land 
is  directed  to  be  sold,  and  the  proceeds  re- 
invested in  other  lands,  or  -where  money- 
is  directed  to  be  invested  in  land  which  is 
to  be  resold  before  making  distribution.  In 
such  cases  the  property  is  to  be  treated  as 
that  species  of  property  into  which,  pur- 
suant to  such  direction,  it  is  to  be  ultimately 
converted. 

Where  real  estate  is  directed  to  be  sold,  and  the  proceeds 
expended  in  the  purchase  of  other  real  estate,  the  persons 
interested  in  the  estate  to  be  so  purchased  will  take  the  same 
interest  in  the  real  estate  to  be  sold  and  in  its  proceeds.1 
And  where  land  in  Michigan  was  directed  to  be  sold,  and  the 
proceeds  invested  in  lands  in  Missouri,  the  court  treated  the 
interests  of  the  parties  in  the  lands  as  though  they  were  sit- 

«  Wheldale  y.  Partridge,  8  Ves.  227,  236. 

i«  Lechmere  v.  Lechmere,  Cas.  t.  Talb.  80;  Pulteney  v.  Earl  of 
Darlington,  1  Brown,  Ch.  223. 

§  104.  i  Pearson  v.  Lane,  17  Ves.  101;  White  v.  Howard,  46  N. 
1.144. 


244  CONVERSION    AND    RECONVERSION.  (Ch.   10 

uated  in  Missouri.1  A  will  directing  an  investment  of  mon- 
ey in  land  for  the  benefit  of  the  widow  of  the  testator  during 
her  lifetime,  and  at  her  death  to  be  sold,  and  the  proceeds 
distributed  among  the  children,  was  held  to  work  a  double 
conversion  from  the  time  of  the  widow's  death.' 


RECONVERSION. 

105.  Reconversion  is   that    imaginary  process  by 

which  a  prior  constructive  conversion  is 
annulled  and  taken  away,  and  the  construc- 
tively converted  property  is  restored,  in 
contemplation  of  a  court  of  equity,  to  its 
original  actual  quality.1 

106.  Reconversion  may  take  place  by 

(a)  Election  of  the  party  interested  in  the   con- 

verted estate. 

(b)  By  operation  of  law. 

By  Election. 

Where  money  is  directed  to  be  invested  in  land  in  fee 
simple  for  A.'s  benefit,  equity  will  regard  the  money  as  land ; 
but  A.,  being  absolutely  entitled  to  the  land,  may  elect  to 
take  the  property  in  its  original  form;  and  in  that  event 
equity  will  treat  the  property  as  reconverted  into  money, 
since  it  would  be  useless  to  insist  that  a  person  should  take 
a  fund  in  the  quality  of  land  when  he  prefers  it  in  the  form 
of  money,  and  can  at  any  moment  reduce  it  to  that  form  by 
sale.1  The  law  is  clear  as  to  the  right  of  the  party  to  re- 
convert where  he  is  entitled  to  the  whole  interest  in  posses- 
sion, either  to  the  land  to  be  sold  or  the  money  to  be  in- 
vested ;  but  where  his  interest  is  a  partial  one,  or  he  has  on- 
ly an  undivided  share  in  the  land  or  money,  he  cannot  elect 

•  Ford  v.  Ford,  80  Mich.  42,  44  N.  W.  1057. 

•  De  Vaughn  v.  McLeroy,  82  Ga.  687,  10  S.  E.  211. 
|§  10T),  106.     i  Snell,  Eq.  190;   Haynes,  Eq.  365. 

«  Seeley  v.  Jago,  1  P.  Wins.  389;  Bayley  v.  Bishop,  9  Ves.  6;  De 
Taughn  v.  McLeroy,  82  Ga,  687,  10  S.  E.  211. 


§§    105-106)          .  RECONVERSION.  245 

unless  it  can  be  shown  that  the  interests  of  the  other  par- 
ties would  not  be  affected  thereby.*  This  doctrine  is  found- 
ed on  the  presumption  that  a  power  of  sale  is  given  by  the 
testator  for  the  benefit  and  convenience  of  the  devisees  and 
legatees,  and,  unless  made  so  in  terms,  was  not  intended  to 
be  imperative  so  as  to  prevent  the  beneficiaries  from  taking 
his  bounty,  except  in  the  precise  form  in  which  the  property 
would  exist  after  the  conversion.4  A  remainder-man  can- 
not elect  so  as  to  affect  the  interests;  but  there  is  nothing 
to  prevent  the  remainder-man  declaring,  as  between  his  real 
and  personal  representatives,  that  a  particular  reversionary 
interest  to  which  he  is  entitled  shall  be  money  or  shall  be 
land.5  And  while  the  persons  who  are  exclusively  entitled 
to  the  fund  arising  from  the  sale  of  land  may,  if  they  so  elect, 
take  the  land  in  its  unconverted  form,  there  must  be  a  con- 
currence of  all  the  beneficiaries  in  the  election  in  order  to 
take  the  real  estate  out  of  the  operation  of  the  power  of 
sale.6  A  person  who  is  non  sui  juris — that  is,  subject  to  such 
an  incapacity  as  prevents  him  from  effectively  dealing  with 
his  own  property — cannot  elect  to  reconvert.  Therefore  an 
infant  or  a  lunatic  cannot  reconvert,  although  the  court  may, 

»  Holloway  v.  Radcliffe,  23  Beav.  163;  Deeth  v.  Hale,  2  Moll.  317; 
Prentice  v.  Janssen,  79  N.  Y.  478;  Mellen  v.  Mellen,  139  N.  Y.  220, 
84  N.  E.  925.  In  this  case  the  court  says:  "It  is  a  principle  now 
well  settled  that  where,  by  will,  money  is  directed  to  be  laid  out  in 
the  purchase  of  land  for  designated  beneficiaries,  or  land  is  directed 
to  be  sold,  and  the  proceeds  distributed,  it  is  competent  for  the 
parties  beneficially  interested,  provided  they  are  competent  and  of 
full  age,  and  the  gift  is  immediate,  and  not  in  trust  to  elect,  belore 
the  conversion  has  actually  taken  place,  to  take  the  money  in  the 
one  case  and  the  land  in  the  other,  and  when  they  have  so  elected, 
and  the  election  has  been  made  known,  the  power  of  the  trustee 
for  conversion  ceases,  and  becomes  extinguished,  and  he  cannot 
thereafter  lawfully  proceed  to  execute  the  power."  And  see,  also, 
Armstrong  v.  McKelvey,  104  N.  Y.  179,  10  N.  E.  266;  McDonald  v. 
O'Hara,  144  N.  Y.  566,  39  N.  E.  642;  High  v.  Worley,  33  Ala.  196; 
Baker  v.  Copenbarger,  15  111.  103,  58  Am.  Dec.  600;  Shallenberger 
v.  Ash  worth,  25  Pa.  152;  Evans'  Appeal,  63  Pa.  183,  186;  Pyle's  Ap- 
peal, 102  Pa.  321. 

<  Mellen  v.  Mellen,  139  N.  Y.  210,  220,  34  N.  E.  925. 

«  2  Spence,  Eq.  271;  Triquet  v.  Thornton,  13  Ves.  345;  Gillies  v. 
Longlands,  4  De  Gex  &  S.  372,  379;  Prentice  v.  Janssen,  79  N  Y 
478. 

«  McDonald  v.  O'Hara,  144  N.  Y.  566,  39  N.  E.  642. 


246  CONVERSION    AND    RECONVERSION.  (Ch.   10 

if  it  appears  to  be  to  the  advantage  of  an  infant,  direct  a 
reconversion  in  his  behalf.7 

An  express  declaration  of  intention  by  the  beneficiary  will, 
of  course,  result  in  an  election;  but  it  is  not  indispensable. 
No  distinct  and  positive  act  is  required  for  such  a  purpose, 
and  the  rule  applicable  is  that  in  the  reconversion  of  real 
estate  a  slight  expression  of  intention  will  be  considered 
sufficient  to  demonstrate  an  election  on  the  part  of  those 
absolutely  entitled.8  But  the  act  relied  upon  to  show  an 
election  must  be  clear  and  unequivocal,  and  of  such  a  char- 
acter as  to  leave  no  reasonable  doubt  of  the  intention.* 

By  Operation  of  Law. 

Reconversion  by  operation  of  -law  results  when  a  fund 
which  is  directed  or  agreed  to  be  laid  out  in  land  comes  to 
the  hands  of  the  person  for  whom  the  purchase  is  to  be  made, 
and  in  whom  the  entire  right  is  vested,  and  such  person  dies 
before  he  has  declared  his  intention  to  elect.  Such  fund 
then,  being  in  the  hands  of  one  who  is  entitled  to  the  sole  use 
thereof,  will  be  treated  as  money,  and  will  not  go  to  the 
heir.10 

i  Seeley  v.  Jago,  1  P.  Wms.  389;  Carr  v.  Ellison,  2  Brown,  Ch.  56; 
Dyer  v.  Dyer,  13  Wkly.  Rep.  739;  Robinson  v.  Robinson,  19  Beav. 
494;  Ashby  v.  Palmer,  1  Mer.  296. 

«  Leigh  &  D.  Convers.  (volume  5,  Law  Library)  Marg.  p.  168;  1 
Jarm.  Wills,  §  523;  Mutlow  v.  Bigg,  1  Ch.  Div.  385;  Prentice  v.  Jans- 
sen,  T9  N.  Y.  478,  485;  Bailey  T.  Nat  Bank,  104  Pa.  425. 

•  Beatty  v.  Byers,  18  Pa.  105. 

»o  Chlcherter  v.  Bickerstaff,  2  Vern.  295;  Pulteney  v.  Earl  of  Dar- 
lington, 1  Brown,  Cb.  223;  Wheldale  v.  Partridge,  8  Ves.  235. 


§    107)        GROUNDS    OF   EQUITABLE    RELIEF ACCIDENT.  217 

CHAPTER    XI. 

GROUNDS  OF  EQUITABLE  RELIEF— ACCIDENT. 

107.  Accident  Defined. 

108.  Right  to  Relief  because  of  Accident 

109.  Cases  in  Which  Relief  will  be  Afforded. 

ACCIDENT  DEFINED. 

107.  Accident,  as  considered  in  equity,  is  an  unfore- 
seen, unexpected,  and  injurious  event,  occur- 
ring to  a  party  affected  by  it,  and  which 
cannot  be  attributed  to  his  mistake,  neglect, 
or  misconduct.1 

It  has  been  said  that  all  attempts  to  define  accident  in  its 
equitable  significance  must  prove  unsuccessful.  The  defi- 
nition above  used  is  that  given  by  Mr.  Smith  in  his  Manual 
of  Equity,  and  has  been  favorably  considered  by  many  able 
writers.  Mr.  Pomeroy,  whose  definition  is  contained  in  the 
footnote,  has  excluded  all  "fortuitous  occurrences  which  do 
not  occasion  any  exercise  of  jurisdiction,  since  they  are  not 
'accidents'  within  the  equitable  conception."  His  definition, 
while  valuable  and  accurate,  is  explanatory  of  its  use  in 
equity  jurisprudence,  and  therefore  goes  further  than  is  es- 
sential for  a  simple  and  concise  definition. 

The  jurisdiction  of  a  court  of  equity  in  cases  of  accident 
is  of  very  ancient  origin,  and  is  probably  coeval  with  its 
existence.2-  In  the  earlier  history  of  equity,  when  its  juris- 

§  107.  »  Smith,  Man.  Eq.  Jur.  p.  36.  "Accident  is  an  unforeseen 
and  unexpected  event,  occurring  external  to  the  party  affected  by  It, 
and  of  which  his  own  agency  is  not  the  proximate  cause,  whereby, 
contrary  to  his  own  Intention  and  wish,  he  loses  some  legal  right  or 
becomes  subjected  to  some  legal  liability,  and  another  person  ac- 
quires a  corresponding  legal  right,  which  It  would  be  a  violation  of 
good  conscience  for  the  latter  person,  In  the  circumstances,  to  re- 
tain." Pom.  Eq.  Jur.  $  823. 

2  Story,  Eq.  Jur.  $  79. 


248  GROUNDS   OF    EQUITABLE    RELIEF ACCIDENT.       (Ch.   11 

diction  was  not  very  clearly  defined,  relief  was  given  in 
many  cases  of  accident  where  it  would  now  be  refused.* 


BIGHT  TO  BELIEF  BECAUSE  OF  ACCIDENT. 

108.  The  right  to  equitable  relief  on  the  ground  of 
accident  is  based  on  two  essentials: 

(a)  The  party's  conscientious  title  to  relief. 

(b)  The  inability  of  a  court  of  law  to  originally 

afford  an  adequate  remedy. 

Title  to  Relief. 

There  are  many  cases  of  accident  in  which  no  remedy 
can  be  had,  either  legal  or  equitable;  as,  where  one  has 
been  guilty  of  gross  negligence,  or  other  misconduct  in  the 
transaction,  he  cannot  successfully  appeal  to  equity  for  re- 
lief.1 Nor  will  relief  be  granted  in  favor  of  a  party,  how- 
ever great  the  injury  caused  by  the  accident,  if  the  other 
party  to  the  transaction  is  equally  entitled  to  the  protection 
of  the  court.  The  relief  will  not  be  granted  if  the  adverse 
party  is  a  bona  fide  purchaser  without  notice.1  Nor  will 
relief  be  afforded  to  legatees  or  devisees  under  a  will  de- 
fectively executed  through  accident ;  for  a  legatee  or  devisee 
is  a  mere  volunteer,  taking  by  the  bounty  of  the  testator, 
and  has  no  independent  right  until  there  is  a  title  consum- 
mated by  law.*  And  equity  will  not  afford  relief  in  matters 
of  positive  contract,  and  against  obligations  created  by  the 
deliberate  acts  of  the  parties,  where  the  nonperformance  is 
wholly  the  result  of  accident,  or  where  one  of  the  parties 
has  been  prevented  from  deriving  the  full  benefit  of  the  con- 
tract on  his  own  side.*  There  is  an  exception  to  this  rule 

»  Thus,  an  action  for  relief  from  a  penalty  Incurred  for  failure 
to  repair  a  river  bank  within  the  time  agreed  was  sustained,  on  the 
ground  that  the  plaintiff  had  been  prevented  from  executing  his 
contract  by  reason  of  unexpected  floods.  Introduction  to  Calendars 
in  Chancery,  voL  1,  p.  142. 

S  108.     »  Ex  parte  Greenway,  6  Ves.  812. 

«  Maiden  r.  Menlll,  2  Atk.  8;  Powell  v.  Powell,  Finch,  Prec.  278; 
Jenkins  v.  Keinis.  1  Ch.  Cas.  103;  Pom.  Eq.  Jur.  §  829. 

»  Whltton  v.  Russell,  1  Atk.  448. 

«  To  Illustrate  the  application  of  this  doctrine  In  a  case  where  a 
lessee  covenants  to  keep  the  buildings  in  repair,  when  he  will  be 


§    108)  RIGHT   TO    RELIEF   BECAUSE    OF    ACCIDENT.  249 

in  the  case  of  agreements  providing  for  penalty  and  forfei- 
ture, in  which,  as  we  have  seen,  equity  may  intervene  to 
relieve,  within  certain  limits.5 

Inability  of  Courts  of  Law  to  Afford  Eelief. 

Courts  of  law  have  always  had  jurisdiction  to  grant  re- 
lief in  certain  cases  of  accident,  such  as  loss  of  deeds,  mis- 
takes in  receipts  and  payments,  deaths  which  make  it  im- 
possible to  perform  a  condition  literally,  and  a  multitude 
of  other  contingencies.6  In  such  cases  the  equitable  juris- 
diction has  ever  been  exercised.  But  courts  of  law  could 
not  and  did  not  exercise  jurisdiction  in  a  great  number  of 
cases  of  accident,  and,  on  the  other  hand,  courts  of  equity  as- 
sumed jurisdiction  over  many  such  cases  which  were  not  cog- 
nizable in  law.  By  statutory  enactment  and  subsequent  de- 
velopment and  extension  of  the  jurisdiction  of  common-law 
courts  redress  can  now  be  afforded  in  those  courts  in  many 
cases  of  accident  which  were  not  originally  within  the  scope 
of  that  jurisdiction.  But,  where  courts  of  equity  have  once 
assumed  to  afford  relief  against  an  accident  which  was  not 
originally  cognizable  in  a  court  of  law,  no  future  assump- 
tion of  jurisdiction  by  such  a  court  can  deprive  a  court  of 
equity  of  its  jurisdiction.  Nor  will  authority  conferred  by 
statute  on  such  courts  to  afford  relief  in  similar  cases  of 
accident  affect  such  equitable  jurisdiction.1  This  principle 
is  in  conformity  with  that  other  fundamental  principle  that, 

bound  to  do  so  both  In  law  and  equity,  notwithstanding  the  injury 
of  the  premises  by  inevitable  accident,  see  Bullock  v.  Dommitt,  6 
Term  R.  650;  Navigation  Co.  v.  Pritchard,  Id.  750;  Pym  v.  Black- 
burn, 3  Ves.  34,  38.  Covenants  to  pay  rent  unless  proper  exceptions 
are  made  are  enforceable  regardless  of  accident  to  the  leasehold. 
Story,  Eq.  Jur.  §  102;  Wood  v.  Hubbell,  10  N.  Y.  479;  Fowler  v.  Nott, 
6  Mass.  63;  Phillips  v.  Stevens,  16  Mass.  238;  Brewer  v.  Herbert, 
30  Md.  301,  96  Am.  Dec.  582,— where  a  contract  for  the  sale  of  a 
house  and  land  was  enforced,  although  the  house  had  burned 
down.  And  see  McKechnie  v.  Sterling,  48  Barb.  (N.  Y.)  330,  335; 
Smith  v.  McCluskey,  45  Barb.  (N.  Y.)  610,  613.  One  who  has  con- 
tracted to  raise  and  deliver  a  specific  quantity  of  seeds  wll  not  be 
relieved  from  his  contract  because  of  the  accidental  destruction  of 
his  crop.  Anderson  v.  May,  50  Minn.  280,  52  N.  W.  530,  17  I*  R.  A. 
555,  36  Am.  St.  Rep.  642. 

»  Penalties  and  Forfeitures,  ante,  p.  95. 

«  3  Bl.  Comm.  431. 

i  Case  v.  Fishback,  10  B.  Mon.  (Ky.)  40;  Hall  v.  Hall,  43  Ala.  488. 
94  Am.  Dec.  703. 


250  GROUNDS    OP   EQUITABLE    RELIEF ACCIDENT.       (Ch.   II 

where  the  equitable  jurisdiction  has  once  been  established 
with  respect  to  any  subject-matter,  it  is  not  destroyed  or 
abridged  by  a  jurisdiction  subsequently  acquired  by  courts 
of  law  to  give  the  same  or  other  adequate  relief  under  the 
same  circumstances.  The  statement  that  relief  against  ac- 
cident will  not  be  afforded  where  there  is  an  adequate  rem- 
edy at  law  must  be  understood  to  mean  an  adequate  remedy, 
which  could  not  be  originally  afforded  by  a  court  of  law; 
that  is,  at  the  time  when  the  equitable  jurisdiction  was  first 
established. 


CASES  IN  WHICH  RELIEF  WILL  BE  AFFORDED. 

109.  Courts  of  equity  will  afford  relief 

(a)  Where  deeds  or  other  instruments   are   lost 

or  destroyed. 

(b)  Where  powers  are  imperfectly  executed. 

(c)  Where  payments  are  erroneously  made. 

(d)  Against  judgments  at  law,  and  in  other  mis- 

cellaneous cases  which  cannot   be  conven- 
iently grouped. 

Lost  or  Destroyed  Deeds  or  Other  Instruments. 

Courts  of  equity  have,  from  an  early  time,  exercised  ju- 
risdiction of  suits  brought  to  recover  the  amount  due  on 
lost  or  destroyed  bonds  or  other  instruments  under  seal, 
where  no  remedy  exists  at  law,  or  no  remedy  which  is  ade- 
quate, and  adapted  to  the  circumstances  of  the  case.  The 
reasons  for  the  exercise  of,  the  equitable  jurisdiction  hi 
such  cases  is  found  in  the  fact  that  in  a  court  of  law  profert 
of  the  sealed  instrument  was  required,  which  was  impossi- 
ble when  the  instrument  was  lost.  Courts  of  equity  never 
required  this  formality.  The  abolishment  of  the  common- 
law  requisite  of  a  profert  has  not  theoretically  affected  the 
equitable  jurisdiction,1  although  courts  of  law  now  enter- 
tain jurisdiction  if  an  allegation  of  the  loss  by  accident 
be  stated  in  the  pleading.2  Another  reason  may  be  found 

t  109.    i  Pom.  Eq.  Jur.  §  831. 

*  Read  v.  Brookman,  3  Term  R.  151;  Duffield  v.  Elwes,  1  Bligh  (N. 
S.)  543;  Almy  v.  Reed,  10  Gush.  (Mass.)  421. 


§    109)     CASES   IN    WHICH    BELIEF   WILL    BE    AFFORDED.  251 

in  the  fact  that  only  a  court  of  equity  could  exact  an  in- 
demnity bond  from  the  plaintiff  to  protect  the  defend- 
ant from  future  liability.8  An  indemnity  of  the  defendant 
is  a  necessary  feature  of  actions  brought  to  recover  on 
lost  negotiable  instruments.  An  offer  of  indemnity  is  gen- 
erally required,  but  without  it  a  recovery  may  be  had,  and 
the  judgment  recovered  will  be  conditioned  upon  the  de- 
fendant being  fully  protected  by  an  indemnity  bond.4  It 
is  this  ability  of  courts  of  equity  to  protect  the  defendant 
which  made  possible  the  exercise  of  its  jurisdiction  in  ac- 
tions to  recover  on  lost  negotiable  instruments.  No  such 
protection  was  ever  afforded  by  the  common-law  courts, 
and  while,  in  such  cases,  actions  might  be  maintained  there- 
in, the  remedy  was  not  adequate  or  suitable.5  This  juris- 
diction of  courts  of  equity  is  concurrent,  and  is  not  now 
subject  to  question  or  doubt.  Courts  of  law  in  most  of  our 
states  have  express  statutory  authority  to  render  judgments 
in  such  cases  which  would  be  in  every  way  sufficient  to 
meet  the  requirements. 

Defective  Execution  of  Powers. 

Equity  will  relieve  where  it  is  shown  that  a  power  is  im- 
perfectly executed  because  of  accident  or  mistake ;  but  such 
defect  must  be  a  formal  one,  and  not  of  the  very  essence 
of  the  power.6  Equity  will  not  interfere  where  the  power 
is  not  executed  at  all,  unless  the  power  is  coupled  with  a 

«  Ex  parte  Greenway,  6  Ves.  812;  Patton  v.  Campbell,  70  111.  72; 
Bohart  v.  Chamberlain,  99  Mo.  622,  13  S.  W.  85;  Griffin  v.  Fries,  23 
Fla.  173,  2  South.  266,  11  Am.  St  Rep.  351;  Livingston  v.  Livingston, 
4  Johns.  Ch.  (N.  Y.)  294;  Lawrence  v.  Lawrence,  42  N.  H.  109. 

*  Walmsley  v.  Child,  1  Ves.  Sr.  341,  344,  345;  Savannah  Nat.  Bank 
v.  Hasldns,  101  Mass.  370,  3  Am.  Rep.  373;  City  of  Bloomington  v. 
Smith,  123  Ind.  41,  23  N.  E.  972,  18  Am.  St.  Rep.  310. 

6  Other  American  cases  involving  the  question  of  Jurisdiction  in 
actions  to  recover  on  lost  negotiable  instruments  are  Patton  v. 
Campbell,  70  111.  72;  Force  v.  City  of  Elizabeth,  27  N.  J.  Eq.  408; 
Donaldson  v.  Williams,  50  Mo.  407;  Bohart  v.  Chamberlain,  99  Mo. 
622,  13  S.  W.  85;  Livingston  v.  Livingston,  4  Johns.  Ch.  (N.  Y.)  294; 
Thornton  v.  Stewart,  7  Leigh  (Va.)  128;  Griffin  v.  Fries,  23  Fla. 
173,  2  South.  266,  11  Am.  St.  Rep.  351;  Hickman  v.  Painter,  11  W. 
Va.  386;  Lyttle  v.  Cozad,  21  W.  Va.  183;  Hardeman  v.  Battersby,  53 
Ga.  36;  Lawrence  v.  Lawrence,  42  N.  H.  109. 

•  Smith,  Man.  Eq.  Jur.  (15th  Ed.)  p.  32. 


252  GROUNDS    OF   EQUITABLE    RELIEF ACCIDENT.       (Ch.    11 

trust.7  Where  there  is  a  clear  manifestation  in  writing  of 
an  intention  to  execute  a  power,  it  will  be  deemed  a  de- 
fective execution,  and  equity  will  relieve.8  But  equity  will 
only  interpose  in  favor  of  purchasers  (including  mortgagees 
and  lessees),  creditors,  wives,  children,  and  charities;  but 
not  in  favor  of  the  donee  of  the  power,  husbands,  illegiti- 
mate children,  distant  relatives,  or  mere  volunteers.* 

Erroneous  Payments. 

A  court  of  equity  will  relieve  an  executor  or  administrator 
from  many  liabilities  resulting  from  accident,  where  he  has 
acted  in  good  faith  and  with  due  caution ;  as,  where  execu- 
tors or  administrators  have  paid  debts  and  legacies  in  full, 
believing  that  the  estate  is  sufficient  for  all  purposes,  and  it 
afterwards  turns  out  that  there  is  a  deficiency  of  assets, 
equity  will  intervene  to  grant  such  remedies  as  will  relieve 
them  from  legal  liability.10  And,  where  certain  legatees 
have  been  paid  in  full,  equity  will  interpose  in  favor  of  the 
unpaid  legatees  against  ihe  legatees  who  are  paid,  to  com- 
pel them  to  refund  in  proportion,  if  there  was  an  original 

T  Warneford  v.  Thompson,  3  Ves.  513;  Brown  v.  Higgs,  8  Ves.  574; 
Withers  v.  Yeadon,  1  Rich.  Eq.  (S.  C.)  324;  Norcum  v.  D'Oench,  17 
Mo.  98. 

»  Sugd.  Powers,  549;  Snell,  Eq.  382;  Smith,  Eq.  (15th  Ed.)  32; 
Mitchell  v.  Densoa,  29  Ala.  327,  66  Am.  Dec.  403;  Barr  v.  Hatch,  3 
Ohio,  527. 

•  Fothergill  v.  Fothergill,  1  Preem.  257;  Barker  v.  Hill,  2  Ch.  R. 
218;  Reid  v.  Shergold,  10  Ves.  370;  Pollard  v.  Greenvil,  1  Oh.  Cas. 
10;  Wilkes  v.  Holmes,  9  Mod.  485;  Clifford  v.  Earl  of  Burlington,  2 
Vern.  379;  Sarth  v.  Blanfrey,  Glib.  Eq.  166;  Bruce  v.  Bruce,  L.  R. 
11  Eq.  371;  Innee  v.  Sayer,  7  Hare,  377;  Attorney  General  v.  Sib- 
thorp,  2  Russ.  &  M.  107;  Ellison  v.  Ellison,  6  Ves.  656;  Watt  v. 
Watt  8  Ves.  244;  Tudor  v.  Anson,  2  Ves.  Sr.  582;  Watts  v.  Bullas,  1 
P.  Wms.  60;  Smith  v.  Ashton,  1  Freem.  309;  Beatty  v.  Clark,  20 
Cal.  11;  Schenck  v.  Ellingwood,  8  Edw.  Ch.  (N.  Y.)  175;  Hout  v. 
Hout,  20  Ohio  St  119;  Dennison  v.  Goehring,  7  Pa.  175;  Huss  v. 
Morris,  63  Pa.  367;  Freeman  v.  Eacho,  79  Va.  43.  As  to  the  general 
doctrine,  see  Long  v.  Hewitt,  44  Iowa,  3G3;  Bakewell  v.  Ogden,  2 
Bush  (Ky.)  265;  Stewart  v.  Stokes,  33  Ala,  494,  73  Am.  Dec.  429; 
Kearney  v.  Vaugban,  50  Mo.  284;  Bradish  v.  Gibbs,  8  Johns.  Ch. 
(N.  Y.)  523;  Freeman  v.  Eacho,  79  Va.  43;  American  Freehold  Land 
Mortg.  Co.  of  London  v.  Walker  (C.  O.)  31  Fed.  103. 

10  Edwards  r.  Freeman,  2  P.  Wms.  447;  Hawkins  v.  Day,  Amb. 
160;  Chamberlalne  r.  Chamberlalne,  1  Freem.  141;  Story,  Eq.  Jur. 
I  90  et  aeq. 


§   109)      CASES    IN    WHICH    BELIEF    WILL  BE    AFFORDED.  253 

deficiency  of  assets,  and  the  executor  is  insolvent.11  Other 
cases  of  the  intervention  of  courts  of  equity  to  relieve  an 
executor  are  found  where  the  goods  of  the  testator  have 
been  stolen  without  negligence  on  the  part  of  his  executor,12 
or  have  been  destroyed  or  damaged  by  fire  or  otherwise,13 
and  where  an  executor  has  reckoned  as  an  asset  a  debt 
which  he  supposed  to  be  still  due,  but  which  proves  in  fact 
to  have  been  paid.14 

Relief  against  Judgments. 

Many  of  the  cases  in  which  relief  has  been  granted  against 
a  judgment  because  of  accident  have  related  to  proceed- 
ings subsequent  to  the  entry  thereof,  and  the  accident  com- 
plained of  has  been  one  which  destroyed  the  remedy  by 
way  of  appeal  or  motion  for  a  new  trial.  It  has  been  al- 
most universally  held  in  such  cases  that  such  an  accident, 
whereby  a  party  has  been  deprived  of  his  remedy  without 
any  lack  of  diligence  on  his  part,  warrants  the  interference 
of  a  court  of  equity.18  But  in  such  cases  the  party  losing 
his  right  to  present  his  appeal  or  his  motion  for  a  new 
trial  by  some  accident  must  show,  in  addition  to  establish- 
ing the  loss  and  the  accident,  that,  but  for  the  accident,  he 
would  have  escaped  from  the  judgment.19  And,  generally, 
where  a  party  has  been  prevented  from  setting  up  a  good 
defense  on  the  merits,  without  negligence  on  his  part,  and 
a  judgment  is  rendered  against  him,  equity  will  enjoin  fur- 
ther proceedings  to  enforce  the  judgment,  or  will  set  it 
aside,  and  order  a  new  trial  on  the  merits.11 

11  Story,  Eq.  Jur.  §  92,  citing  Edwards  v.  Freeman,  2  P.  Wms. 
447;  Moore  v.  Moore,  2  Ves.  Sr.  600;  Walcott  v.  Hall,  2  Brown,  Oh. 
805. 

12  Jones  v. -Lewis,  2  Ves.  Sr.  240. 

«  Clough  v.  Bond,  3  Mylne  &  C.  490,  496. 

i<  Pooley  v.  Ray,  1  P.  Wms.  355. 

IB  Leigh  v.  Armor,  35  Ark.  123;  Kansas  &  A.  V.  Ry.  Oo.  r.  Fltz- 
hugh,  61  Ark.  341,  33  S.  W.  960,  54  Am.  St.  Rep.  211;  Picket  v. 
Morris,  2  Wash.  (Va.)  255;  Knifong  v.  Hendricks,  2  Grat  (Va.)  212, 
44  Am.  Dec.  385. 

i«  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Wells,  61  Ark.  354,  33  S.  W. 
208,  30  L.  R.  A.  560,  54  Am.  St.  Rep.  216;  Galbraith  v.  Barnard,  21 
Or.  67,  26  Pac.  1110;  Overton  v.  Blum,  50  Tex.  417;  Ratto  v.  Levy, 
63  Tex.  278. 

if  Thomason  v.  Fannin,  54  Ga,  361;  Grubb  v.  Kolb,  55  Ga.  630; 
Darling  v.  Mayor,  etc.,  51  Md.  1;  Robinson  v.  Wheeler,  51  N.  H. 


254  GROUNDS   OF   EQUITABLE    RELIEF ACCIDENT.       (Ch.  11 

Miscellaneous  Cases. 

There  are  many  other  cases  in  which  equity  will  inter- 
fere to  relieve  a  person  from  the  result  of  an  accident  which 
cannot  be  classified  under  either  of  the  foregoing  heads. 
But  the  instances  cited  in  which  such  relief  will  be  afforded 
seem  sufficient  to  illustrate  the  application  of  the  several 
rules  applicable  to  cases  of  accident. 

384;  Cairo  &  F.  R.  Co.  v.  Titus,  27  N.  J.  Bq.  102;  Herbert  v.  Herbert, 
49  N.  J.  Eq.  70,  22  Atl.  789;  New  York  &  H,  R.  Co.  v.  Haws,  66  N. 
Y.  175;  Barber  v.  Rukeyser,  39  WIs.  590. 


§    110)          GROUNDS    OF   EQUITABLE    KELIKF — MISTAKE.  265 

CHAPTER  XII. 

GROUNDS  OF  EQUITABLE  RELIEF— MISTAKE. 

110.  Definition. 

111.  Classification. 

112.  Mistake  of  Law. 

113.  Mistake  of  Fact 

114.  Classification. 

115.  When  Mutual  or  Fundamental. 

116.  Of  One  of  the  Parties  as  to  Subject-Mattcr. 

117.  Mistake  of  Expression. 

118.  Restoration  of  Parties. 

DEFINITION. 

110.  Mistake  may  be  said  to  exist,  in  a  legal  sense, 
where  a  person,  acting  upon  some  erroneous 
conviction,  either  of  law  or  of  fact,  executes 
an  instrument,  or  does  an  act,  which,  but 
for  that  erroneous  conviction,  he  would  not 
have  executed  or  done.1 

In  distinguishing  between  accident  and  mistake,  Prof. 
Pomeroy  calls  attention  to  the  fact  that  an  accident  is  an 
unexpected  occurrence  external  to  the  party  affected  by  it, 
which  prevents  the  performance  of  an  act  which  the  party 
is  bound  to  do,  and  he  is  thereby  subjected  to  a  liability; 
while  a  mistake  is  internal.  "It  is  a  mental  condition,  a 

{  110.  i  Haynes,  Eq.  p.  80.  The  definitions  which  have  been  given 
by  leading  text  writers  and  judges  are  not  always  appropriate  or 
satisfactory.  Judge  Story  says:  "Mistake  Is  some  unintentional  act, 
or  omission,  or  error,  arising  from  ignorance,  surprise,  imposition, 
or  misplaced  confidence."  Eq.  Jur.  §  110.  This  definition  has  been 
followed  by  Snell  (Eq.  p.  367).  Pomeroy  Justly  criticises  this  defini- 
tion as  defining  the  consequences  of  mistake,  rather  than  the  fact 
itself.  He  defines  mistake  as  follows:  "Mistake  Is  an  erroneous 
mental  condition,  conception,  or  conviction,  induced  by  ignorance, 
misapprehension,  or  misunderstanding  of  the  truth,  but  without 
negligence,  and  resulting  in  some  act  or  omission  done  or  suffered 
erroneously  by  one  or  both  the  parties  to  a  transaction,  but  without 
its  erroneous  character  being  intended  or  known  at  the  time." 


256  GROUNDS    OF   EQUITABLE   RELIEF MISTAKE.       (Ch.   12 

conception,  a  conviction  of  the  understanding, — erroneous, 
indeed,  but  none  the  less  a  conviction, — which  influences  the 
will,  and  leads  to  some  outward  physical  manifestation."  3 

Equitable  Jurisdiction. 

Mistake  has,  from  the  beginning  of  the  exercise  of  equi- 
table jurisdiction,  been  a  favorite  ground  for  the  award  of 
equitable  remedies.  There  are  many  remedies  based  on 
mistake,  originally  administered  by  courts  of  equity,  which 
are  now  afforded  by  courts  of  law.  But  the  relief  afforded 
at  law  was  and  is  partial,  and  not  always  sufficient  to  meet 
the  exigencies  of  every  case.  For  instance,  in  the  case  of 
an  instrument  executed  through  mistake,  the  only  relief 
that  could  be  afforded  in  a  court  of  law  was  to  declare  the 
instrument  a  nullity,  and  thereby  the  rights  of  the  parties 
might  be  affected ;  but  in  equity  the  instrument  itself  could 
be  reformed,  and  relief  granted  on  the  reformed  instrument 
as  if  it  was  originally  correct.' 

Except  in  cases  of  specific  performance,  the  effect  of  mis- 
take on  a  contract,  unaccompanied  by  fraud  or  misrepre- 
sentation, came  chiefly  before  courts  of  law.4  The  earlier 
theory  of  equity  seems  to  have  been  that  mistake,  whether 
of  fact  or  of  law,  was  a  ground  for  relief  in  all  cases.*  Such, 
however,  is  not  now  the  law.  It  is  an  almost  universal 
rule  that  a  person  is  bound  by  an  agreement  to  which  he 
has  expressed  his  assent  in  unequivocal  terms,  uninfluenced 
by  falsehood,  violence,  or  oppression.  If  he  has  exhibited 
all  the  outward  signs  of  an  agreement,  the  law  will  hold 
that  he  has  agreed.  As  a  rule,  a  person  cannot  avoid  his 
contract  by  showing  that  he  has  made  a  mistake.'  There 

•  Pom.  Eq.  Jur.  §  839. 

•  Bisp.  Eq.  §  184. 

«  Pol.  Cent  (5th  Ed.)  p.  444. 

•  Francis,  In  his  treatise  on  Equity,  written  In  1737,  says  (page 
10):    "Another  Impediment  of  assent  Is  Ignorance  and  error,  whether 
In  fact  or  In  law;  and,  If  the  mistake  Is  discovered  before  any  step 
Is  taken  towards  performance,  It  is  just  that  he  should  have  liberty 
to  retract,  at  least  upon  satisfying  the  other  of  the  damage  that  he 
has  sustained  in  losing  his  bargain.    But  If  the  contract  is  either 
wholly  or  In  part  performed,  and  no  compensation  can  be  given 
him,  then  it  is  absolutely  binding,  notwithstanding  the  error.    Yet 
this  is  not  to  be  understood  when  there  proves  to  be  an  error  In  the 
thing  or  subject  for  which  he  bargained"." 

•  Alison,  Cont.  p.  122;  PoL  Cont  (5th  Ed.)  p.  392. 


§    111)  CLASSIFICATION.  257 

are  exceptions  to  this  rule,  both  at  law  and  in  equity.  When 
mistake  is  a  ground  for  relief  in  equity  is  the  subject  of 
the  following  discussion. 


CLASSIFICATION. 

111.  Mistake  may  be  classified  as 

(a)  Of  law,  or 

(b)  Of  fact. 

David  Dudley  Field,  in  his  proposed  Civil  Code  of  New 
York,  defined  mistake  of  law  and  mistake  of  fact  as  fol- 
lows : 

"Mistake  of  fact  is  a  mistake  not  caused  by  the  neglect 
of  a  legal  duty  on  the  part  of  the  person  making  the  mis- 
take, and  consists  in  (i)  an  unconscious  ignorance  or  forget- 
fulness  of  a  fact,  past  or  present,  material  to  the  contract; 
or  (2')  belief  in  the  present  existence  of  a  thing  material  to 
the  contract  which  does  not  exist,  or  in  the  past  existence 
of  such  a  thing  which  has  not  existed/'  * 

"Mistake  of  law  constitutes  a  mistake  only  when  it  arises 
from  (i)  a  misapprehension  of  the  law  by  all  parties,  all 
supposing  that  they  knew  and  understood  it,  and  all  mak- 
ing substantially  the  same  mistake  as  to  the  law;  or  (2)  a 
misapprehension  of  the  law  by  one  party,  of  which  the 
others  are  aware  at  the  time  of  contracting,  but  which  they 
do  not  rectify."  * 

§  111.  i  Field's  Proposed  Civ.  Code  N.  Y.  §  762.  And  see  Civ.  Code 
Cal.  §  1577.  The  Field  Code  cites,  among  other  cases  substantiating 
the  definition  quoted  in  the  text,  the  following:  U.  S.  Bank  v.  Bank, 
10  Wheat.  333,  6  L.  Ed.  334;  Kelly  v.  Solari,  9  Mees.  &  W.  54;  Mc- 
Daniels  v.  Bank,  29  Vt.  230,  238,  70  Am.  Dec.  406;  Blwell  v.  Chamber- 
lain, 4  Bosw.  (N.  Y.)  320;  Briggs  v.  Vanderbilt,  19  Barb.  (N.  Y.)  222; 
Rheel  v.  Hicks,  25  N.  Y.  289;  Ketchum  v.  Stevens,  19  N.  Y.  499, 
502;  Belknap  v.  Sealey,  14  N.  Y.  143,  67  Am.  Dec.  120;  Martin  v. 
McCormick,  8  N.  Y.  331,  335;  Wheadon  v.  Olds,  20  Wend.  (N.  Y.) 
174. 

2  Field's  Proposed  Civ.  Code  N.  Y.  §  763;  Civ.  Code  Cal.  §  1578. 
The  New  York  Code  cites  Many  v.  Iron  Co.,  9  Paige  (N.  Y.)  188; 
Hall  v.  Reed,  2  Barb.  Ch.  (N.  Y.)  500;  Pitcher  v.  Plank-Road  Co.,  10 
Barb.  (N.  Y.)  436. 
MATON,EQ.— 17 


268  QBOUKDS   OF   EQUITABLE    RELIEF MISTAKE.       (Ch.   12 


MISTAKE  OP  LAW. 

112.  As  a  general  rule,  equity  •will  not  relieve  on 
the  ground  of  a  mistake  of  law;  but,  -where 
there  are  special  circumstances  giving  rise 
to  an  independent  equity  on  behalf  of  the 
mistaken  party,  equity  •will  intervene. 

It  is  a  well-known  and  firmly-established  maxim,  both 
in  law  'and  equity,  that  ignorance  of  the  law  is  no  excuse 
to  any  person,  either  for  breach  or  omission  of  a  duty, — 
"Ignorantia  legis  neminem  excusat."  The  rule  was  long 
ago  stated  by  Lord  Ellenborough :  "Every  man  must  be 
taken  to  be  cognizant  of  the  law;  otherwise,  there  is  no 
saying  to  what  extent  the  ignorance  might  not  be  carried. 
It  would  be  urged  in  almost  every  case."  *  This  rule  does 
not  extend,  however,  to  the  laws  of  foreign  countries  or 
states,*  or  to  private  statutes ;  *  hence  mistakes  as  to  them 
are  treated  as  mistakes  of  fact. 

When  Relief  will  be  Granted. 

There  are  qualifications  of  this  general  rule,  which  have 
given  rise  to  the  equitable  jurisdiction  to  relieve  on  the 
ground  of  mistake  of  law.  Many  cases  can  be  cited  directly 
opposed  to  the  existence  of  this  jurisdiction.4  But  there  is 
a  long  line  of  specific  authorities,  most  of  them  undoubtedly 
correct,  in  which  relief  for  mistake  of  law  has  either  been 
granted  or  admitted  to  be  a  proper  head  of  equity  juris- 
diction. All  of  these  cases  will,  upon  examination,  be  found 
to  rest,  not  upon  the  consideration  of  a  mere  mistake  of 
law,  stripped  of  all  other  circumstances,  but  upon  an  ad- 

|  112.  *  Bilbie  v.  Lumley,  2  East,  469,  where  it  was  held  that 
money  paid  with  knowledge  of  all  the  facts,  but  In  Ignorance  of  the 
parties'  legal  rights,  could  not  be  recovered. 

a  Leslie  v.  Baillie,  2  Younge  &  C.  Ch.  91:  McCormick  v.  Garnett, 
5  De  Gex,  M.  &  G.  278;  Haven  v.  Foster,  9  Pick.  (Mass.)  112;  Mor- 
gan v.  Bell,  3  Wash.  St.  576.  28  Pac.  925,  16  L.  R.  A.  614. 

«  Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves.  Sr.  472,  480;  Cooper  ?. 
Phibba,  L.  R.  2  H.  L.  149.  170. 

«  Peters  v.  Florence,  38  Pa.  194;  Goltra  v.  Sanasack,  53  111.  456; 
Zollniau  v.  Moore,  21  Grat.  (Va.)  313;  Brown  r.  Arinlstead,  6  Rand. 
(Va.)  594. 


§    112)  MISTAKE   OF   LAW.  259 

mixture  of  other  ingredients  going  to  establish  misrepre- 
sentation, imposition,  abuse  of  confidence,  undue  influence, 
mental  imbecility,  or  that  sort  of  surprise  which  equity  uni- 
formly regards  as  a  just  foundation  for  relief.5 

In  determining  the  question  whether  relief  may  be  had  in 
equity  because  of  a  mistake  of  law  it  is- important  to  ascer- 
tain the  nature  of  the  mistake.  The  mistake  may  be  one 
of  the  general  rules  of  law  governing  a  person's  relations 
and  duties  to  the  state  and  to  his  fellows,  which  affect  the 
particular  obligation  or  contract  from  which  he  seeks  to  be 
relieved,  but  which  are  not  especially  applicable  thereto. 
Among  such  laws  are  those  making  certain  acts  criminal 
regulating  the  acquisition  and  disposition  of  property  and 
controlling  the  execution  of  agreements.  There  is  scarcely 
an  exception,  in  such  cases,  to  the  general  rule  that  "igno- 
rantia  juris  non  excusat."  On  the  other  hand,  the  mistake 
may  be  one  occasioned  by  the  ignorance  or  error  of  a  par- 
ticular person  with  respect  to  his  own  legal  rights  and  in- 
terests which  are  affected  by,  or  which  result  from,  a  certain 
transaction  in  which  he  is  engaged.8  Applications  for  re- 
lief based  upon  mistake  generally  fall  within  this  latter  class. 
It  has,  in  fact,  been  stated  by  an  able  English  judge  that 
in  the  legal  maxim  expressed  as  "Ignorantia  juris  haud  ex- 
cusat" "the  word  'jus'  is  used  in  the  sense  of  denoting  gen- 
eral law, — the  ordinary  law  of  the  country.  But  when  the 
word  'jus'  is  used  in  the  sense  of  denoting  a  private  right, 
that  maxim  has  no  application."  T  This  limited  application 
of  the  maxim  is  not  warranted  by  the  great  weight  of  ju- 
dicial authority.  It  would  seem  that,  unless  there  are  at- 
tendant circumstances,  such  as  misrepresentation,  conceal- 
ment, undue  influence,  or  other  inequitable  conduct  on  the 
part  of  one  of  the  parties  to  the  contract,  the  mistaken 
party  cannot  be  relieved  from  his  contractual  obligation  be- 
cause he  was  ignorant  of  the  legal  effects  of  the  contract 
or  of  his  rights  thereunder. 

There  can  be  no  relief  from  the  obligation  of  a  contract 
because  of  a  mistake  of  one  of  the  parties  as  to  the  legal 


»  Snell,  Eq.  p.  368. 
«  Pom.  Eq.  Jur.  §  841. 

i  Cooper  v.  Phibbs,  L.  R.  2  H.  L.  149,  170,  per  Lord  Westbury. 
See,  also,  Keener,  Eq.  Gas.  p.  43. 


260  GROUNDS    OF    EQUITABLE    RELIEF — MISTAKE.       (Ch.   12 

effects  of  certain  words  used  therein.*  And  where  parties, 
upon  deliberation  and  advice,  reject  one  species  of  security, 
and  agree  to  select  another,  under  a  misapprehension  of 
the  law  as  to  the  nature  of  the  security  so  selected,  a  court 
of  equity  will  not,  on  the  ground  of  such  misapprehension 
and  the  insufficiency  of  such  security  in  consequence  of  a 
subsequent  event,  not  foreseen,  perhaps,  or  thought  of,  di- 
rect a  new  security  of  a  different  character  to  be  given,  or 
decree  that  to  be  done  which  the  parties  supposed  would 
have  been  effected  by  the  instrument  which  was  finally 
agreed  upon.'  The  general  rule  may  be  stated  to  be  that, 
where  a  contract  is  made  by  parties  having  knowledge  of 
the  facts,  and  with  no  inequitable  incidents  connected  there- 
with, equity  will  not  intervene  to  protect  either  party  who 
may  have  been  mistaken  as  to  the  legal  effect,  meaning,  or 
scope  of  the  contract.10 

But  the  rule  that  equity  will  not  grant  relief  where  the 
mistake  is  one  of  law  is,  at  best,  a  hard  one,  and  applies 
only  where  the  mistake  is  simply  one  of  law,  and  the  party 
had  full  knowledge  of  all  the  material  facts  and  circumstan- 
ces. All  the  cases  which  deny  a  remedy  for  a  mere  mistake  of 
law  on  one  side  are  careful  to  add  the  qualification  that 
there  must  be  no  improper  conduct  on  the  other.11  Where 

•  Powell  v.  Smith,  L.  R.  14  Eq.  85,  90. 

»  Hunt  v.  Rousmanier's  Adm'rs,  8  Wheat  174,  5  L.  Ed.  589;  Id., 
1  Pet.  1,  7  L.  Ed.  27;  3  Keener,  Eq.  Cas.  6,  20,  note. 

10  Rogers  v.  Ingharn,  3  Ch.  Div.  351,  3  Keener,  Eq.  Cas.  75;  Lark- 
ins  v.  Biddle,  21  Ala.  252;  Kelly  v.  Turner,  74  Ala.  513,  519,  3  Keener, 
Eq.  Cas.  92;  Wood  v.  Price,  46  111.  439;  Nelson  v.  Davis,  40  Ind. 
366;  Heavenridge  v.  Mondy,  49  Ind.  434;  Glenn  v.  Statler,  42  Iowa, 
107;  Moorman  v.  Collier,  32  Iowa,  138;  Molony  v.  Rourke,  100  Mass. 
190;  Stockbridge  Iron  Co.  v.  Iron  Co.,  107  Mass.  290,  319,  3  Keener, 
Eq.  Cas.  54;  Smith  v.  Hitchcock,  130  Mass.  570;  Norris  v.  Larabee, 
58  Me.  200;  Martin  v.  Hamlin,  18  Mich.  354;  Kennnrd  v.  George.  44 
N.  H.  440;  Wintermute  v.  Snyder,  3  N.  J.  Eq.  489;  Bentley  v.  Whit- 
temore,  18  N.  J.  Eq.  366;  Hawralty  v.  Warren,  Id.  124,  90  Am.  Deo. 
613;  Leavitt  v.  Palmer,  3  N.  Y.  19,  51  Am.  Dec.  333;  Lanning  v. 
Carpenter,  48  N.  Y.  408;  Pitcher  v.  Hennessey,  Id.  415,  423,  3  Keener, 
Eq.  Cas.  65;  Weed  v.  Weed,  94  N.  Y.  243;  Born  v.  Schrenkeisen,  110 
N.  Y.  55,  17  N.  E.  339;  Clayton  v.  Freet,  10  Ohio  St.  544;  Evanta  v. 
Strode's  Adm'r,  11  Ohio,  480,  38  Am.  Dec.  744;  Huss  v.  Morris,  63 
Pa.  367;  Light  v.  Light,  21  Pa,  407;  Melllsh  v.  Robertson,  25  Vt 
603. 

"  Haviland  v.  Willets,  141  N.  Y.  35,  50,  35  N.  E.  958,  3  Keener, 
Eq.  Cas.  144,  citing  Silliman  v.  Elng,  7  Hjll  (N.  Y.)  159;  Flynn  v. 


§    112)  MISTAKE    OF    LAW.  261 

relief  has  been  granted  on  the  ground  of  mistake  of  law,  it 
has  generally  appeared  either  that  there  has  been  a  marked 
disparity  in  the  position  or  intelligence  of  the  parties,  so 
that  they  have  not  been  on  equal  terms,  or  that  the  party 
obtaining  the  property  persuaded  the  other  to  part  with  it ; 
so  that  there  has  been  "undue  influence"  on  the  one  side 
and  "undue  confidence"  on  the  other.12  It  may  be  stated 
as  a  well-established  rule  that,  where  there  is  a  mistake  of 
law  on  one  side,  and  either  positive  fraud  on  the  other,  or 
inequitable,  unfair,  and  deceptive  conduct,  which  contends 
to  confirm  the  mistake  and  conceal  the  truth,  it  is  the  right 
and  duty  of  equity  to  award  relief.18 

Reformation  of  Instruments  Because  of  Mistake  of  Law. 

There  is  now  no  doubt  as  to  the  right  of  a  party  to  ob- 
tain in  equity  a  reformation  of  an  instrument  for  a  mistake 
of  law.14  As  has  been  held  in  New  York,  where  parties, 
to  carry  out  their  contract,  agree  to  use  an  instrument  which, 
by  their  mistake  of  the  law,  will  not  effectuate  their  in- 
tention, equity  will  not  reform  the  instrument  or  substitute 
another;  but  where  parties  intending  to  reduce  a  parol 
agreement  to  writing,  and  because  they  are  ignorant  of  the 
force  of  language,  and  misunderstand  the  meaning  of  the 
terms  used,  make  a  contract  different  from  that  intended, 
equity  will  grant  relief  by  reforming  the  instrument,  and 
compelling  the  parties  to  execute  and  perform  their  agree- 
ment as  they  made  it.1B  In  other  words,  if  in  the  latter 

Hurd,  118  N.  Y.  26,  22  N.  E.  1109;  Vanderbeck  T.  City  of  Rochester, 
122  N.  Y.  285,  25  N.  E.  408. 

12  Jordan  v.  Stevens,  51  Me.  78,  81  Am.  Dec.  556. 

isHaviland  v.  Willets,  141  -N.  Y.  35,  50,  35  N.  E.  958,  3  Keener, 
Eq.  Gas.  144;-Greene  v.  Smith,  160  N.  Y.  533,  55  N.  E.  210;  Boggs  v. 
Hargrave,  16  Cal.  559,  76  Am.  Dec.  507;  Sands  v.  Sands,  112  111. 
225;  Hollingsworth  v.  Stone,  90  Ind.  244;  Appeal  of  Whelen,  70  Pa. 
410. 

i*  Snell  v.  Insurance  Co.,  98  U.  S.  85,  25  L.  Ed.  52,  3  Keener,  Eq. 
Cas.  80;  Walden  v.  Skinner,  101  U.  S.  577,  583,  25  L.  Ed.  963;  Lark- 
Ins  v.  Biddle,  21  Ala.  252;  Stedwell  v.  Anderson,  21  Conn.  139;  Rem- 
ington v.  Higgins,  54  Cal.  620;  Cooke  v.  Husbands,  11  Md.  492; 
Stover  v.  Poole,  67  Me.  217,  223;  McMillan  v.  Paper  Co.,  29  N.  J. 
Eq.  610;  Kennard  v.  George,  44  N.  H.  440,  446;  Pitcher  v.  Hen- 
nessey, 48  N.  Y.  415,  3  Keener,  Eq.  Cas.  65;  Benson  v.  Markoe,  37 
Minn.  30,  33  N.  W.  38,  5  Am.  St.  Rep.  816. 

IB  Pitcher  v.  Hennessey,  48  N.  Y.  415,  3  Keener,  Eq.  Cas.  65. 


262  GROUNDS    OF   EQUITABLE    RELIEF MISTAKE.       (Ch.   12 

Case  the  written  instrument  fails  to  express  the  meaning 
of  the  parties  thereto,  and  does  not  carry  out  their  inten- 
tions, relief  may  be  had  in  equity,  regardless  of  the  mistake 
of  one  or  both  of  the  parties  as  to  the  legal  effects,  scope, 
and  meaning  of  the  terms  contained  in  the  instrument.18 

There  are  cases  which  seem  to  indicate  that  there  can  be 
no  relief  in  equity  against  a  mistake  of  one  or  both  the 
parties  to  an  instrument  as  to  the  legal  meaning  of  words 
contained  therein,  where  the  parties  were  aware  of  the  lan- 
guage used,  and  were  not  in  any  way  deceived,  misled,  or 
otherwise  imposed  upon,  or  subjected  to  any  undue  or  im- 
proper influence.  In  an  Illinois  case  the  court  refused  to 
permit  the  reformation  of  a  deed  by  inserting  the  word 
"children"  for  the  word  "heirs,"  although  it  was  apparent 
that  the  grantor  intended  to  use  the  word  "children."  1T 
This  case,  and  the  others  cited  in  the  footnote,  are  not 
in  direct  contravention  of  the  rule  first  alluded  to.  In  the 
cases  upon  which  the  rule  as  first  stated  is  based  there  was 
a  failure  to  express  in  legal  language  the  intent  of  the  par- 
ties as  verbally  agreed  upon.  In  the  latter  class  of  cases 
the  instruments  in  question  were  not  based  upon  prior  oral 
agreements.  Judge  Story  states  the  rule  thus:  "Where 
an  instrument  is  drawn  and  executed  which  professes  or  is 
intended  to  carry  into  execution  an  agreement  previously 
entered  into,  but  which,  by  mistake  of  the  draftsman,  either 
as  to  fact  or  as  to  law,  does  not  fulfill  that  intention,  or 
violates  it,  equity  will  correct  the  mistake,  so  as  to  produce 

And  see  Lanning  v.  Carpenter,  48  N.  Y.  408;  Born  v.  Schrenkelsen, 
110  N.  Y.  55,  17  N.  E.  339. 

i«  Hunt  v.  Rousmanler's  Adm'rs,  8  Wheat.  174,  5  L.  Ed.  589,  3 
Keener,  Eq.  Cas.  6;  Id.,  1  Pet.  1,  7  L.  Ed.  27;  Stockbridge  Iron 
Co.  v.  Iron  Co.,  107  Mass.  290,  3  Keener,  Eq.  Cas.  54;  Blakeman  v. 
Blakeman,  39  Conn.  320,  3  Keener,  Eq.  Cas.  72.  When  parties 
enter  into  a  written  agreement,  and  the  instrument  fails,  through 
mistake  of  law  or  fact,  to  express  their  true  agreement,  or  omits 
stipulations  agreed  upon,  or  contains  terms  contrary  to  the  inten- 
tion of  the  parties,  equity  will  reform  the  writing,  making  it  con- 
form to  the  agreement  entered  into  by  the  parties.  Stafford  v. 
Fetters,  65  Iowa,  484,  8  N.  W.  322,  3  Keener,  Eq.  Cas.  80. 

IT  Fowler  v.  Black,  136  111.  3(53,  26  N.  E.  590,  3  Keener,  Eq.  Cas. 
100.  And  see  Sibert  v.  McAvoy,  15  111.  106;  Goltra  v.  Sanasack,  53 
111.  456;  Sands  v.  Sands,  112  I1L  225;  Bonney  v.  Stoughton,  122  111. 
B3G,  13  N.  E.  833. 


§    112)  MISTAKE   OF   LAW.  263 

a  conformity  to  the  intention."  "  Another  general  rule  ap- 
plicable to  the  reformation  of  a  written  instrument  on  the 
ground  of  a  mistake  of  law  is  as  follows :  A  mistake  which 
will  warrant  a  court  of  equity  in  reforming  a  written  con- 
tract must  be  a  mistake  made  by  both  parties  to  the  agree- 
ment, or  it  must  be  a  mistake  of  one  party,  by  which  his 
intentions  have  failed  of  correct  expression,  and  there  must 
be  fraud  in  the  other  party  in  taking  advantage  of  the  mis- 
take, and  obtaining  a  contract  with  the  knowledge  that  the 
one  dealing  with  him  is  in  error  as  to  what  are  its  terms.19 

Mistake  as  to  Existing  Legal  Rights. 

A  mistake  as  to  the  legal  effects  of  a  transaction  is  not  a 
ground  for  equitable  relief,  unless  there  are  accompanying 
incidents  which  entitle  the  mistaken  party  to  equitable  pro- 
tection. But  where  a  party  is  possessed  of  certain  ante- 
cedent or  existing  legal  rights  or  interests  which  are  either 
unknown  to  him  at  the  time  of  entering  into  a  transaction, 
or  he  is  mistaken  as  to  the  effect  such  transaction  will  have 
upon  such  rights  or  interests,  he  may  be  granted  equitable 
relief  from  the  obligations  assumed  by  such  transaction  in 
ignorance  of  such  rights  or  interests,  or  in  mistake  of  the 
effect  thereon.  A  mistake  as  to  such  legal  rights  and  in- 
terests has  frequently  been  treated  as  a  mistake  of  fact, 
and  upon  this  theory  courts  of  equity  have  most  frequently 
intervened.20  Mr.  Pomeroy  states  the  rule  as  follows : 

is  Story,  Eq.  Jur.  §  115.  And  see  Lee  v.  Percival,  85  Iowa,  639, 
52  N.  W.  543,  3  Keener,  Eq.  Gas.  135;  Dinwiddie  v.  Self,  145  111.  290, 
33  N.  E.  892,  3  Keener,  Eq.  Cas.  137;  Park  Bros.  &  Co.  v.  Blodgett 
&  Clapp  Co.,  64  Conn.  28,  29  Atl.  133,  3  Keener,  Eq.  Cas.  150. 

i»  Bryce  v.  Insurance  Co.,  55  N.  Y.  243,  14  Am.  Rep.  249;  Wlnans 
y.  Huyck,  71  Iowa,  459,  32  N.  W.  422;  Marshall  v.  Westrope,  98 
Iowa,  324,  67 -N.  W.  257,  3  Keener,  Eq.  Cas.  166. 

20  The  meaning  of  this  proposition  is  well  illustrated  by  the  lan- 
guage of  Jessel,  M.  R.,  in  Eaglesfield  v.  Marquis  of  Londonderry,  4 
Ch.  Div.  693,  702,  703:  "A  misrepresentation  of  law  is  this:  When 
you  state  the  facts,  and  state  a  conclusion  of  law,  so  as  to  distin- 
guish between  the  facts  and  the  law,  the  man  who  knows  the  facts 
Is  taken  to  know  the  law.  But  when  you  state  that  as  a  fact  which 
no  doubt  involves,  as  most  facts  do,  a  conclusion  of  law,  that  is  still 
a  statement  of  fact,  and  not  a  statement  of  law.  Suppose  a  man 
is  asked  by  his  tradesman  whether  he  can  give  credit  to  a  lady, 
and  the  answer  is:  'You  may.  She  is  a  single  woman,  of  large  for- 
tune.' It  turns  out  that  the  man  who  gave  that  answer  knew  that 
the  lady  had  gone  through  the  ceremony  of  marriage  with  a  man 


264  GROUNDS    OF    EQUITABLE    RELIEF MISTAKE.       (Ch.  12 

"Wherever  a  person  is  ignorant  or  mistaken  with  respect 
to  his  own  antecedent  and  existing  private  legal  rights,  in- 
terests, estates,  duties,  liabilities,  or  other  relation,  either  of 
property,  or  contract,  or  personal  status,  and  enters  into 
some  transaction,  the  legal  scope  and  operation  of  which 
he  correctly  apprehends  and  understands,  for  the  purpose 
of  affecting  such  assumed  rights,  interests,  or  relations,  or 
of  carrying  out  such  assumed  duties  or  liabilities,  equity 
will  grant  its  relief,  defensive  or  affirmative,  treating  the 
mistake  as  analogous  to,  if  not  identical  with,  a  mistake  of 
fact."  " 

Compromises  not  Affected  by  Mistake  of  Law. 

If  a  compromise  be  made  in  case  of  a  dispute  between 
parties  as  to  their  legal  rights  to  the  property  in  question, 
a  court  of  equity  will  not  interfere,  although  one  of  the 
parties  enters  into  the  compromise  with  an  erroneous  con- 
ception as  to  his  legal  rights  and  interests.  Such  compro- 
mises are  favored  by  courts  of  equity,  and  they  will  not  be 
disturbed,  in  the  absence  of  conduct  otherwise  inequitable.22 


who  was  believed  to  be  a  married  man,  and  that  she  had  been  ad- 
vised that  the  marriage  ceremony  was  null  and  void,  though  it  had 
not  been  declared  so  by  any  court,  and  it  afterwards  turned  out 
that  they  were  all  mistaken,— that  the  first  marriage  of  the  man 
was  void,  so  that  the  lady  was  married.  He  does  not  tell  the  trades- 
man all  these  facts,  but  states  that  she  is  single.  That  is  a  state- 
ment of  fact.  If  he  had  told  him  the  whole  story  and  all  the  facts, 
and  said,  'Now,  you  see  the  lady  is  single,'  that  would  have  been  a 
misrepresentation  of  law.  But  the  single  fact  he  states — that  the 
lady  is  unmarried— is  a  statement  of  fact,  neither  more  nor  less; 
and  it  is  not  the  less  a  statement  of  fact  that,  In  order  to  arrive  at 
It,  you  must  know  more  or  less  of  the  law."  See,  also,  Cooper  v: 
Phibbs,  L.  R.  2  H.  L.  149;  Broughton  v.  Hutt,  3  De  Gex  &  J.  501, 
504;  Blakeman  v.  Blakeman,  39  Conn.  320;  Gerdine  v.  Menage,  41 
Minn.  417,  43  N.  W.  91;  Lovell  v.  Wall,  31  Fla,  73,  12  South.  659; 
Morgan  v.  Bell,  3  Wash.  St  570.  28  Pac.  925,  16  L.  R.  A.  614. 

»i  Pom.  Eq.  Jur.  §  849.  And  see  Hearst  v.  Pujol,  44  Cal.  230; 
Chestnut  Hill  Reservoir  Co.  v.  Chase,  14  Conn.  123;  Carley  v.  Lewis, 
24  Ind.  23;  Fly  y.  Brooks,  64  Ind.  50;  Bonney  v.  Stoughton,  122  111. 
536,  13  N.  E.  833;  Kornegay  v.  Everett,  99  N.  C.  30,  5  S.  E.  418; 
Sklllman  v.  Teeple,  1  N.  J.  Eq.  232;  Layton  v.  Chaplin,  1  Edw.  Ch. 
(N.  Y.)  467;  Whelen's  Appeal,  70  Pa.  410. 

**  Pickering  v.  Pickering,  2  Beav.  56;  Naylor  v.  Winch,  1  Sim.  & 
8.  504;  Miles  v.  Estate  Co.,  32  Ch.  Div.  200;  Gormly  v.  Gormly,  130 
Pa,  4G7,  18  AtL  727;  Hall  v.  Wheeler,  37  Minn.  522.  35  N.  W.  377; 


§    112)  MISTAKE    OF    LAW.  265 

And  when  family  compromises  or  agreements  have  been 
entered  into  without  concealment  or  imposition  on  either 
side,  with  no  suppression  of  what  is  true,  or  suggestion  of 
what  is  false,  each  of  the  parties  investigating  the  subject 
for  himself,  and  each  communicating  to  the  other  all  he 
knows  and  all  the  information  which  he  has  received  on 
the  question,  a  court  of  equity  will  not  disturb  the  quiet 
which  is  the  consequence  of  that  agreement,  although  the 
parties  may  have  greatly  misunderstood  their  position  and 
mistaken  their  rights.23  In  all  such  compromises  there  must 
be  not  only  good  faith  and  honest  intention,  but  full  dis- 
closure ;  and,  without  full  disclosure,  honest  intention  is 
not  sufficient.24  If  these  requisites  exist,  it  is  not  indis- 
pensable that  the  question  settled  be  a  doubtful  one,  if  the 
parties  believed  it  to  be  actually  doubtful.28  All  these  prin- 
ciples will  apply  whether  the  doubtful  points  with  reference 
to  which  the  compromise  has  been  made  are  matters  of 
fact  or  of  law.26 

Recovery  of  Money  Paid  under  Mistake  of  Law. 

It  is  a  rule  of  law  that  money  paid  with  full  knowledge 
of  all  the  facts,  although  it  may  be  under  a  mistake  of  law 
on  the  part  of  both  parties,  cannot  be  recovered  back. 

Bell  v.  Lawrence's  Adm'r,  51  Ala.  160;  Dailey  v.  King,  79  Mich.  568, 
44  N.  W.  959;  Allen  v.  Galloway  (C.  C.)  30  Fed.  466. 

23  Snell,  Eq.  p.  370;  Gordon  v.  Gordon,  3  Swanst.  463;  Shartel's 
Appeal,  64  Pa.  25.  In  Westby  v.  Westby,  2  Dru.  &  War.  505,  Lord 
St.  Leonards  said:  "Wherever  doubts  and  disputes  have  arisen 
with  regard  to  the  rights  of  different  members  of  the  same  family, 
and  fair  compromises  have  been  entered  into,  to  preserve  the  har- 
mony and  affection,  or  to  save  the  honor  of  the  family,  then  ar- 
rangements have  been  sustained  by  this  court;  albeit,  perhaps,  rest- 
ing on  grounds  which  would  not  have  been  considered  satisfactory 
if  the  transaction  had  occurred  between  mere  strangers." 

**  Gordon  v.  Gordon,  3  Swanst  400;  De  Cordova  v.  De  Cordova, 
4  App.  Gas.  692. 

25  Lucy's  Case,  4  De  Gex,  M.  &  G.  356,  3  Keener,  Eq.  Gas.  14. 

20  Neale  v.  Neale,  1  Keen,  672;  Westby  v.  Westby,  2  Dru.  &  War. 
602.  The  following  American  cases  are  cited  in  connection  with  the 
general  rule  as  to  the  effect  of  compromises  of  disputed  questions: 
Bell  v.  Lawrence's  Adm'r,  51  Ala,  160;  Wells  v.  Neff,  14  Or.  66,  12 
Pac.  84,  88;  Hall  v.  Wheeler,  37  Minn.  522,  35  N.  W.  377;  Shartel's 
Appeal,  64  Pa.  25;  Wistar's  Appeal,  80  Pa.  484;  Gormly  v.  Gonnly, 
130  Pa.  467,  18  Atl.  727;  Smith  v.  Tanner,  32  S.  C.  259,  10  S.  E.  1008; 
Gilliam  v.  Alford,  69  Tex.  267,  6  S.  W.  757. 


266  GROUNDS    OF    EQUITABLE    RELIEF MISTAKE.       (Ch.    12 

And  courts  of  equity  have  always  recognized  and  followed 
the  rule  of  law,  unless  there  are  present  equitable  grounds 
•which  make  it  inequitable  that  the  party  who  received  the 
money  should  retain  it." 


MISTAKE  OF  FACT. 

113.  An  act  done  or  a  contract  made  under  a  mis- 
take, or  in  ignorance  of  a  material  fact,  is 
voidable,  and  relievable  in  equity.1 

The  power  of  a  court  of  equity  to  relieve  against  a  mis- 
take of  fact  has  been  long  and  frequently  exercised.2  But 
equity  does  not  attempt  to  interfere  in  all  cases  where  the 
parties  have  acted  through  ignorance,  mistake,  or  misap- 
prehension. It  does  not  require  that  the  parties  to  a  con- 
tract should  stand  upon  the  same  footing  as  to  knowledge 
or  information.  Where  one  has  full  and  equal  opportunity 
with  the  other  to  ascertain  the  facts,  and  no  fraud  is  prac- 
ticed on  him,  he  must  abide  by  his  contract;  and  each  of 
the  parties  to  the  contract  is  entitled  to  the  benefit  of  his 
own  sagacity.* 

A  different  presumption  exists  in  the  case  of  a  mistake 
of  fact  than  in  the  case  of  a  mistake  of  law.  Every  man 

*T  Rogers  v.  Ingham,  3  Ch.  Div.  351,  3  Keener,  Eq.  Gas.  75;  Bil- 
bie  v.  Lumley,  2  East,  469;  Milwaukee  &  M.  R.  Co.  v.  Soutter,  13 
Wall.  517,  524,  20  L.  Ed.  543;  Haven  v.  Foster,  9  Pick.  (Mass.)  112, 
19  Am.  Dec.  353;  Storrs  v.  Barker,  6  Johns.  Ch.  (N.  Y.)  166,  10  Am. 
Dec.  316;  Beard  v.  Beard,  25  W.  Va.  486,  52  Am.  Rep.  219;  Erkens 
v.  Nicolin,  39  Minn.  461,  40  N.  W.  567.  An  exception  exists,  how- 
ever, where  money  has  been  paid  under  a  mistake  of  law,  to  an 
officer  of  the  court,— as  a  receiver  or  trustee  In  bankruptcy,— based 
on  the  consideration  that  the  court  should  set  an  example  of  hon- 
esty higher  than  it  would  be  justified  in  enforcing  on  litigants  be- 
fore it.  Ex  parte  James,  9  Ch.  App.  609;  Ex  parte  Siuimonds,  16 
Q.  B.  Div.  308;  Dixon  v.  Brown,  32  Ch.  Div.  597.  And  a  different 
rule  seems  to  exist  in  Connecticut.  Northrop's  Ex'rs  v.  Graves,  19 
Conn.  548,  50  Am.  Dec.  264;  Mansfield  v.  Lynch,  59  Conn.  320,  22 
Atl.  313,  12  L.  R.  A.  285. 

§  113.     i  Story,  Eq.  Jur.  §  140;    Snell,  Eq.  p.  372. 

*  Williams  v.  U.  S..  138  U.  S.  517,  11  Sup.  Ct.  457,  34  L.  Ed.  1026; 
Riegel  v.  Insurance  Co.,  140  Pa.  203.  21  Atl.  392,  11  L.  R.  A.  857. 

»  Stettheimer  v.  Klllip,  75  N.  Y.  2S2,  287;  Etting  v.  Bank,  11  Wheat 
59,  6  L.  Ed.  419. 


§    115)  MISTAKE    OF   PACT.  267 

of  reasonable  intelligence  is  presumed  to  know  the  law,  and 
to  act  upon  the  rights  which  it  confers  or  supports.  When 
he  knows  all  the  facts,  it  is  culpable  negligence  in  him  to 
do  an  act  or  to  make  a  contract,  and  then  set  up  his  igno- 
rance of  the  law  as  a  defense.  But  no  person  can  be  pre- 
sumed to  be  acquainted  with  all  matters  of  fact.  Neither 
is  it  possible,  by  any  degree  of  diligence,  in  all  cases  to  ac- 
quire that  knowledge;  and  therefore  an  ignorance  of  facts 
does  not  impart  culpable  negligence.* 


SAME— CLASSIFICATION. 

114.  Mistake  of  fact  may  be 

(1)  Mutual  or  fundamental,  in  -which  case  it  pre- 

vents any  real  contract  bet-ween  the  parties. 

(2)  Of  one  of  the  parties  as  to  the  subject-matter. 

(3)  Of  expression  of  the  intention  of  the  parties 

in  an  instrument. 

It  is  not  intended  by  this  classification  to  cover  all  pos- 
sible cases  in  which  relief  may  be  had  on  the  ground  of  a 
mistake  of  fact.  Such  mistakes  are  of  great  variety,  and  it 
is  not  possible  to  present  a  classification  which  will  com- 
pose all  cases  which  may  arise.  The  above  classification  will 
only  be  useful  in  considering  the  most  important  of  the  prin- 
ciples which  are  applied  in  cases  involving  mistakes  of  fact, 
and  in  determining  many  of  the  instances  in  which  equitable 
relief  can  be  properly  afforded. 

SAME— WHEN  MUTUAL  OR  FUNDAMENTAL. 

115.  If  the  mistake  of  fact  is  mutual  or  fundament- 

al, preventing  the  existence  of  a  valid  con- 
tract bet-ween  the  parties,  relief  may  be  had 
both  at  law  and  in  equity. 

A  valid  contract  is  based  upon  a  meeting  of  the  minds 
of  the  parties  thereto ;  and  if,  owing  to  some  error  on  one 

*  Story,  Eq.  Jur.  §  140. 


268  GROUNDS   OF    EQUITABLE    RELIEF — MISTAKE.       (Ch.   12 

or  both  sides,  the  parties  never  had  a  common  intention, 
no  valid  contract  could  have  been  formed.  Errors  of  this 
kind  prevent  a  contract  from  being  binding  both  at  law 
and  in  equity. 

Mistake  as  to  Nature  of  Transaction. 

There  may  be  a  fundamental  mistake  as  to  the  nature 
of  the  transaction  itself;  but  this  is  of  rare  occurrence,  for 
men  are  not  apt  to  enter  into  contracts,  the  nature  of  which 
they  do  not  understand.  A  case  like  this  must  necessarily 
arise  from  the  misrepresentation  of  a  third  person;  for,  if 
it  proceeds  from  the  other  party  to  the  contract,  the  ground 
of  equitable  relief  would  be  fraud  or  misrepresentation,  and 
not  mistake.  On  the  other  hand,  if  there  is  no  misrepre- 
sentation, the  contract  cannot  be  avoided  on  the  ground  that 
one  of  the  parties  failed  to  apply  his  mind  to  its  contents, 
or  that  he  did  not  suppose  it  would  have  any  legal  effect.1 
If  certain  facts  are  assumed  by  both  parties  to  a  contract 
as  its  basis,  and  it  subsequently  appears  that  such  facts  did 
not  exist,  the  contract  is  inoperative.1 

Mistake  as  to  Person  with  Whom  Contract  is  Made. 

Where  it  is  of  the  very  essence  of  the  intention  of  one 
of  the  contracting  parties  to  deal  with  another  particular 
person,  a  mistake  as  to  the  person  will  invalidate  the  agree- 
ment.8 Thus,  a  note  executed  under  the  belief  that  the 
maker  owes  the  payee,  when  in  fact  the  debt  is  owing  to 
another  person  of  the  same  name,  will,  as  between  the  par- 
ties, be  canceled  in  equity.4  This  rule  does  not,  however, 
apply  where  the  personality  of  the  parties  is  quite  immate- 

S  115.  i  Hunter  v.  Walters,  7  Ch.  App.  81;  Foster  v.  Macklnnon, 
L.  R.  4  C.  P.  704,  711;  Kennedy  v.  Green,  3  Mylne  &  K.  699,  718. 
A  bill  of  sale  cannot  be  avoided  because  the  party  supposed  she  was 
slpning  a  note,  where  there  was  no  fraud  or  misrepresentation  of  the 
other  party.  Gage  v.  Phillips,  21  Nev.  150,  26  Pac.  60,  37  Am.  St 
Rep.  494.  See,  also,  Cannon  v.  LIndsey,  85  Ala.  198,  3  South.  676,  7 
Am.  St.  Rep.  38. 

2  Fink  v.  Smith,  170  Pa.  124,  32  AtL  566,  50  Am.  St.  Rep.  750; 
Ketchum  v.  Catlln,  21  Vt  191;  Daniel  v.  Mitchell,  1  Story,  172,  Fed. 
Cas.  No.  3,562;  Miles  v.  Stevens,  3  Pa.  21,  45  Am.  Dec.  621. 

»  Boulton  v.  Jones,  2  Hurl.  &  N.  564;  Boston  Ice  Co.  v.  Potter,  123 
Mass.  28,  25  Am.  Rep.  9. 

«  Fltzmaurlce  v.  Mosler,  116  Ind.  363,  16  N.  E.  175,  19  N.  E.  180, 
9  Am.  St  Rep.  854. 


§    115)  MISTAKE    OF   FACT.  269 

rial,  such  as  a  sale  of  goods  for  ready  money.  It  should 
be  observed  that  mistakes  under  this  head  are  almost  nec- 
essarily unilateral. 

Mutual  Mistake  as  to  Subject- Matter. 

Where  the  subject-matter  in  contemplation  of  the  par- 
ties does  not  in  fact  exist  at  the  time  of  the  agreement, 
and  the  mistake  is  common  to  both  parties,  the  agreement 
is  void.5  On  this  principle,  a  contract  for  the  sale  of  shares 
in  a  corporation  is  void  if,  at  the  time  of  the  agreement,  a 
winding-up  petition  has  been  presented,  of  which  both  the 
vendor  and  purchaser  were  ignorant.6  And  where  both  the 
beneficiary  of  a  life  insurance  policy  and  the  company  are 
ignorant  of  the  death  of  the  insured  when  the  policy  is  sur- 
rendered, and  a  paid-up  policy  for  a  smaller  amount  is  is- 
sued in  its  place,  equity  will  reinstate  the  beneficiary  to 
his  legal  rights  in  the  surrendered  policy.7  And  where  A. 
buys  from  B.  an  estate  to  which  the  latter  is  supposed  to 
have  an  unquestionable  title,  and  it  turns  out,  upon  due 
investigation  of  the  facts  (unknown  at  the  time  to  both 
parties),  that  B.  has  no  title  (as  if  there  be  a  nearer  heir 
than  B.,  who  was  supposed  to  be  dead,  but  is  in  fact  living), 
in  such  a  case  equity  would  relieve  the  purchaser  and  re- 
scind the  contract.8  It  makes  no  difference  in  the  appli- 
cation of  the  principle  that  the  subject-matter  of  the  con- 
tract be  known  by  both  the  parties  to  be  liable  to  a  con- 
tingency which  may  destroy  it  immediately ;  for,  if  the  con- 
tingency has,  unknown  to  the  parties,  already  happened,  the 
contract  will  be  avoided  as  founded  on  a  mutual  mistake 
of  a  matter  constituting  the  basis  of  the  contract.8  And  a 
sale  of  land  entered  into  by  both  parties  under  the  belief 
that  the  vendor's  ancestor,  through  whom  he  derives  title, 
is  dead,  will  be  set  aside  where  it  afterwards  appears  that 

B  Couturier  v.  Hastie,  5  H.  L.  Gas.  675;  Allen  v.  Hammond,  11  Pet. 
65,  9  L.  Ed.  633. 

«  Emmerson's  Case,  1  Ch.  App.  433. 

T  Riegel  v.  Insurance  Co.,  153  Pa.  134,  25  Atl.  1070,  19  L.  R.  A. 
166,  3  Keener,  Eq.  Cas.  191. 

a  Story,  Eq.  Jur.  §  140. 

»  Story,  Eq.  Jur.  §  143a;  Bingham  v.  Bingham,  1  Ves.  Sr.  126; 
Riegel  v.  Insurance  Co.,  153  Pa,  134.  25  AtL  1070,  19  L.  R.  A.  166, 
8  Keener,  Eq.  Cas.  191. 


270  GROUNDS    OF    EQUITABLE    RELIEF MISTAKE.       (Ch.   12 

the  ancestor  is  in  fact  alive.10  If,  in  such  cases,  the  mistake 
is  confined  to  one  of  the  parties,  the  agreement  is  prima 
facie  valid;  but  it  will  usually  be  found  that  there  is  some 
ingredient  of  fraud  involved,  which  will  make  it  voidable 
at  the  option  of  the  mistaken  party. 

A  mistake  as  to  the  nature  or  fundamental  qualities  of 
the  subject-matter,  so  that  it  goes  to  the  whole  substance 
of  the  agreement,  and  renders  the  subject-matter  contracted 
for  essentially  different  in  kind  from  the  thing  as  it  actually 
exists,  may  avoid  the  contract.  Thus,  equity  will  set  aside 
a  sale  of  land  entered  into  by  both  parties  under  the  be- 
lief that  it  is  underlaid  with  coal,11  or  covered  with  stand- 
ing pine,11  where  it  appears  that  the  land  has  no  value 
whatever  for  mining  or  lumbering.  So,  also,  a  belief  by 
both  parties  to  a  deed  that  the  land  conveyed  includes  land 
on  which  a  building  is  located,  which  was  the  main  induce- 
ment to  the  purchase,  is  ground  for  rescission.18  In  the 
foregoing  class  of  cases  the  agreement  is  void  only  if  the 
error  is  mutual.14  Where  testamentary  trustees  have  taken 

10  Fleet  wood  v.  Brown,  109  Iiid.  567,  9  N.  E.  352,  11  N.  E.  779. 
So,  also,  a  contract  for  the  sale  of  a  life  interest  after  it  has  in  fact, 
though  without  the  knowledge  of  the  parties,  expired,  is  void.     Coch- 
rane  v.  Willis,  1  Ch.  App.  58;  Strickland  v.  Turner,  7  Exch.  208. 

11  Fritzler  v.  Robinson,  70  Iowa,  500,  31  N.  W.  61. 

12  Thwing  v.  Lumber  Co.,  40  Minn.  184,  41  N.  W.  815. 

i«  Barth  v.  Deuel,  11  Colo.  494,  19  Pac.  471.  Further  illustrations: 
A  mutual  mistake  as  to  the  quantity  of  land  conveyed  is  ground 
for  rescission,  where  the  deficiency  materially  affects  the  value. 
Newton  v.  Tolles,  66  N.  H.  136,  19  Atl.  1092,  9  L.  R.  A.  50,  49  Am. 
St.  Rep.  593.  Equity  will  set  aside  a  contract  for  the  sale  of  the 
vendor's  entire  interest  in  land  when  both  parties  believed  such 
interest  to  be  an  undivided  one-fifth,  and  in  fact  It  was  an  un- 
divided three-fifths.  Cleghorn  v.  Zumwalt,  83  Cal.  155,  23  Pac.  294. 
A  belief  that  a  county  seat  has  been  legally  removed  is  such  a  mis- 
take of  fact  as  will  authorize  a  rescission  of  a  deed  of  land  to  the 
county,  to  be  used  for  a  court-house  site,  when  it  is  afterwards  judi- 
cially declared  that  the  proceedings  for  the  removal  were  illegal, 
and  that  no  removal  has  in  fact  taken  place.  Griffith  v.  Sebastian 
Co.,  49  Ark.  24,  3  S.  W.  886,  3  Keener,  Eq.  Gas.  217.  The  sale  of  a 
blooded  cow  for  a  small  sum,  under  the  mutual  belief  that  she  is 
barren,  Is  void,  when  It  afterwards  turns  out  that  she  was  not  bar- 
ren at  the  time  of  the  sale,  and  therefore  worth  a  large  sum  for 
breeding  purposes.  Sherwood  v.  Walker,  66  Mich.  568,  33  N.  W. 
919,  11  Am.  St.  Rep.  531.  See,  also,  Chapman  v.  Cole,  12  Gray 
(Mass.)  141;  Allen  v.  Hammond,  11  Pet.  71,  9  L.  Ed.  633. 

i«  Smith  v.  Hughes,  L.  R.  6  Q.  B.  597. 


§    116)  MISTAKE    OF   FACT.  271 

from  the  executors  a  conveyance  of  certain  real  property 
at  a  fixed  sum  in  satisfaction  of  a  trust,  and  a  latent  de- 
fect in  the  building  is  subsequently  discovered,  which  seri- 
ously impairs  its  value,  the  trustees  can  rescind  the  con- 
tract under  which  the  conveyance  was  taken,  and  compel 
the  executors  to  take  the  premises  back.15  If  only  one  of 
the  parties  is  mistaken,  it  depends  on  circumstances  now 
to  be  considered  whether  or  not  the  agreement  is  voidable 
at  his  option. 


SAME— OP   ONE  OP    THE  PARTIES    AS   TO    SUBJECT- 
MATTER. 

116.  A  mistake  of  fact  of  one  of  the  parties  to  a 
contract,  as  to  the  subject-matter  thereof, 
cannot  be  relieved  against  in  equity  unless 

(a)  The  fact  is  material  to  the  transaction. 

(b)  The  mistake  is  not  due  to  the  culpable  negli- 

gence of  the  mistaken  party. 

(c)  The   fact   is   one  -which  the  party  -who  has 

knowledge  of  it  is  bound  to  disclose. 

Fact  must  l>e  Material. 

The  fact  concerning  which  either  party  is  mistaken  must 
be  material  to  the  transaction,  and  of  sufficient  importance 
to  have  influenced  the  mistaken  party  in  entering  into  the 
agreement.  If  the  mistake  is  made  in  reference  to  a  fact 
which  is  a  mere  incident,  and  not  a  material  part  of  the 
transaction,  and  if  it  is  not  shown  that  the  conduct  of  the 
mistaken  party  was  determined  by  such  mistake,  there  is 
no  ground  for  equitable  relief.1  It  has  accordingly  been 
held  that  the  mere  fact  that  a  purchaser  of  mineral  land 
supposes  an  abandoned  shaft  to  be  located  thereon  is  no 

«  Stevens  v.  Melcher,  152  N.  Y.  551,  46  N.  E.  965. 

S  116.  i  Penny  v.  Martin,  4  Johns.  Ch.  (N.  Y.)  566;  Dambmann  v. 
Schulting,  75  N.  Y.  55,  63,  3  Keener,  Eq.  Cas.  202;  Stettheimer  v. 
Killip,  75  N.  Y.  282;  Segur  v.  Tingley,  11  Conn.  134;  Weaver  v.  Car- 
ter, 10  Leigh  (Va.)  37;  Trigg  v.  Read,  5  Humph.  (Tenn.)  529,  42  Am. 
Dec.  447;  Paulison  v.  Van  Iderstine,  28  N.  J.  Eq.  306;  Henderson  Y. 
Dickey,  35  Mo.  120;  Daggett  v.  Ayer,  65  N.  H.  82,  18  AtL  169. 


272  GROUNDS   OF    EQUITABLE    RELIEF — MISTAKE.       (Ch.   12 

ground  for  rescission  in  equity,  when  it  does  not  appear 
that  this  mistake  induced  him  to  purchase.2  But  where  a 
contract  was  made  for  the  sale  of  timber  land  under  a 
mistaken  belief  by  both  parties  that  it  contained  a  large 
amount  of  standing  timber,  and  it  afterwards  appeared  that 
the  land  had  been  denuded  of  its  timber,  and  it  was  value- 
less for  timber  purposes,  for  which  it  had  been  bought,  it 
was  held  that  it  was  a  proper  case  for  equitable  relief.8 

Nor  does  the  circumstance  that  one  of  the  parties  is  mis- 
taken as  to  a  material  fact  entitle  him  to  equitable  relief 
in  every  instance.  As  we  shall  hereafter  see,  the  mistake 
must  not  be  due  to  his  own  negligence.  So,  also,  if  parties 
stand  on  an  equal  footing,  and  the  means  of  knowledge 
are  open  to  them  both,  either  of  them  is  entitled  to  the 
benefit  of  his  own  judgment,  skill,  and  capacity.4  The  cur- 
rent of  the  modern  cases,  especially  in  England,  seems  to 
be  that  a  mistake  of  only  one  of  the  parties  to  a  contract 
respecting  the  subject-matter,  though  material,  is  no  ground 
for  equitable  relief,  unless  there  is  some  fiduciary  relation 
between  the  parties  to  raise  an  independent  equity.8 

*  Grymes  y.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798,  3  Keener,  Eq.  Gas. 
p.  175.     In  this  case  the  court  said:     "A  mistake  as  to  a  matter  of 
fact,  to  warrant  relief  in  equity,  must  be  material,  and  the  fact 
must  be  such  that  It  animated  and  controlled  the  conduct  of  the 
party.    It  must  go  to  the  essence  of  the  object  in  view,  and  not  be 
merely  incidental.    The  court  must  be  satisfied  that,  but  for  the 
mistake,  the  complainant  would  not  have  assumed  the  obligation 
from  which  he  seeks  to  be  relieved." 

»  Thwing  v.  Lumber  Co.,  40  iftnn.  184,  41  N.  W.  815. 
«  Kerr,  Fraud  &  M.  408. 

•  "Perhaps  some  of  the  cases  on  this  subject  go  too  far;  but  for 
the  most  part  the  cases  where  a  defendant  has  escaped  on  the 
ground  of  mistake,  not  contributed  to  by  the  plaintiff,  have  been 
cases  when  a  hardship  amounting  to  injustice  would  have  been  in- 
flicted on  him  by  holding  him  to  his  bargain,  and  It  was  unreason- 
able to  hold  him  to  it."    Tamplin  v.  James,  15  Ch.  Dlv.  215.    "The 
court  of  equity  will  grant  relief  where  only  the  party  complaining 
makes  mistakes,  when  the  facts  and  circumstances  give  rise  to  the 
presumption  that  there  has  been  some  undue  Influence,  misappre- 
hension,   imposition,    mental    imbecility,    surprise,    or    confidence 
abused.    Mere  ignorance,  mere  inadequacy  of  consideration,  mere 
weakness  of  mind,  mere  mistake,  on  the  part  of  one  party,  will  not 
entitle  that  party  to  relief.    But  it  is  otherwise  when  there  Is  a 
combination  of  such  things  to  prejudice  the  party."    Bean  T.  Rail- 
road Co.,  107  N.  a  731,  747,  12  S.  E.  600. 


§    116)  MISTAKE    OF    FACT.  273 

Negligence  of  Mistaken  Party. 

Equity  will  not  extend  its  aid  to  relieve  a  mistaken  party 
who  has  been  guilty  of  culpable  negligence.  Mistake,  to 
be  available  in  equity,  must  not  have  arisen  from  negli- 
gence, where  the  means  of  knowledge  were  easily  accessible. 
The  party  complaining  must  have  exercised  at  least  the 
degree  of  diligence  which  may  be  fairly  expected  from  a 
reasonable  person.8  Equity  gives  relief  only  to  the  vigilant, 
and  not  to  the  negligent;  to  those  who  have  not  been  put 
upon  their  diligence  to  make  an  inquiry,  and  not  to  those 
who,  being  put  on  an  inquiry,  have  chosen  to  omit  all  in- 
quiry, which  would  have  enabled  them  at  once  to  correct 
the  mistake,  or  to  obviate  all  ill  effects  therefrom.7  A  party 
coming  into  a  court  of  equity,  and  asking  relief  upon  the 
ground  of  a  mistake,  must  show  that  he  has  used  due  dili- 
gence and  good  faith  to  avoid  the  consequences  of  the  mis- 
take. He  cannot  obtain  relief  where  his  delay  and  omis- 
sion of  duty  have  caused  irreparable  mischief  to  the  other 
party.8  The  degree  of  vigilance  which  is  to  be  exercised 
must  depend  on  the  facts  of  each  case.  Where  the  act 
done  by  mistake  is  one  calculated  to  induce  others  to  take 
a  line  of  conduct  which  will  put  them  to  loss  if  the  mistake 
is  corrected,  it  ought  to  be  clear  that  the  party  asking  for 
relief  has  been  led  into  the  mistake  in  spite  of  the  employ- 
ment of  the  highest  degree  of  vigilance.  Where,  however, 
no  one  is  injured  by  the  mistake  but  the  party  himself,  and 
no  one  has  changed  his  position  by  reason  of  the  act  exe- 
cuted through  the  influence  of  the  alleged  mistake,  there  is 


«  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798,  3  Keener,  Eq.  Cas. 
174;  Duke  of  Beaufort  v.  Neeld,  12  Clark  &  F.  248,  286;  Conner  v. 
Welch,  51  Wis.  431,  8  N.  W.  260,  3  Keener,  Eq.  Cas.  372,  where  it 
was  said:  "It^is  infinitely  better  that  men  should  be  held  to  the  con- 
sequences of  their  own  culpable  carelessness  than  that  courts  of 
equity  should  undertake  to  relieve  therefrom.  The  rule  requires 
reasonable  caution  and  prudence  in  the  transaction  of  business,  and 
is  deeply  imbedded  in  our  jurisprudence.  It  is  within  the  principle 
and  reason  of  caveat  emptor.  The  abrogation  of  the  rule  would 
tend  to  encourage  negligence,  and  to  introduce  uncertainty  and  con- 
fusion in  all  business  transactions."  And  see  Seeley  y.  Bacon 
(N.  J.  Ch.)  34  Atl.  139,  3  Keener,  Eq.  Cas.  387. 

i  Story,  Eq.  Jur.  §  138i,  note. 

»  Thomas  v.  Bartow,  48  N.  Y.  193;  Susquehanna  Mut  Fire  Ins. 
Co,  v.  Swank,  102  Pa,  17. 
EATON.EQ.— 18 


274  GROUNDS    OF   EQUITABLE    RELIEF MISTAKE.       (Ch.   12 

no  reason  why  the  mistake  should  not  be  corrected,  al- 
though the  highest  degree  of  diligence  has  not  been  exer- 
cised." 

This  rule  as  to  diligence  only  applies  where  it  is  the  duty 
of  the  mistaken  party  to  make  the  inquiry  and  to  obtain 
the  information;  as,  where  an  attorney  drew  a  correct  de- 
cree, and  left  it  with  the  proper  officer  to  be  recorded,  it 
was  held  that  he  was  not  guilty  of  negligence  because  he 
did  not  see  that  it  was  correctly  entered,  for  he  had  a  right 
to  suppose  that  this  would  be  done.10 

Obligation  to  Disclose  Knowledge. 

There  is  no  obligation  to  disclose  knowledge  in  respect 
to  the  subject-matter  of  a  contract  if  it  appears  that  means 
of  information  are  open  to  both  parties.  Nor  is  there  an 
obligation  resting  on  either  party  to  disclose,  if  each  is 
presumed  to  exercise  his  own  skill  and  judgment,  and  there 
is  no  confidence  reposed  in  one  by  the  other.  As  has  been 
said:  "If  parties  are  at  arm's  length,  either  of  them  may 
remain  silent,  and  avail  himself  of  his  superior  knowledge 
as  to  facts  and  circumstances  equally  open  to  the  observation 
of  both,  or  equally  within  the  reach  of  their  ordinary  dili- 
gence, and  is  under  no  obligation  to  draw  the  attention  of 
the  other  to  circumstances  affecting  the  property,  the  sub- 
ject-matter of  the  contract,  although  he  may  know  him  to 
be  under  a  mistake  with  respect  to  them."  "  It  is  evident 
from  this  observation  that  a  mistake  of  one  of  the  parties 
to  a  contract  is  not  relieved  against  unless  the  failure  of 
the  better  informed  party  to  disclose  amounts  to  fraud. 
A  party  may,  because  of  his  position,  fiduciary  or  other- 
wise, be  under  a  duty  to  disclose;  in  which  event,  if  there 

•  Seeley  v.  Bacon  (N.  J.  Ch.)  34  Atl.  139,  3  Keener,  Eq.  Cas.  387. 
And  see  Simmons  v.  Palmer,  93  Va.  389,  25  S.  E.  6,  3  Keener,  Eq. 
Cas.  393. 

10  Snyder  v.  Ives,  42  Iowa,  157. 

11  Kerr,  Fraud  &  M.  pp.  408,  414.    Where  there  is  no  such  rela- 
tion of  trust  or  confidence  between  the  parties  ns  imposes  on  one 
an  obligation  to  give  full  Information  to  the  other,  the  latter  can 
not  proceed  blindly,  omitting  all  Inquiry  and  examination,  and  then 
complain  that  the  other  did  not  volunteer  to  give  all  the  Informa- 
tion he  had.     Dambmann  v.  Schulting,  75  N.  Y.  55,  3  Keener,  Eq. 
('.-is.  202;   Bell  v.  Lawrence's  Adm'r,  51  Ala.  160;   Anthony  v.  Boyd, 
15  R.  I.  495,  8  Atl.  701,  10  Atl.  057;    Stover  v.  Mitchell,  45  111.  213; 
Mortimer  v.  Capper,  1  Browue,  Ch.  158. 


§117)  MISTAKE    OF    EXPRESSION.  275 

is  reason  to  believe  that  he  knows  more  about  the  subject- 
matter  than  the  other  party,  he  will  not  be  permitted  by  a 
court  of  equity  to  hold  the  latter  to  his  agreement.11 


MISTAKE  OP  EXPRESSION. 

117.  Mistake  of  expression  occurs  whenever  an 
agreement  or  disposition  is  sought  to  be  em- 
bodied in  a  formal  instrument,  and  the  in- 
strument is  so  framed  as  not  to  correctly 
express  the  intention  of  the  parties  thereto. 
Such  mistake,  if  mutual,  •will  be  rectified  in 
equity. 

Whenever  it  clearly  appears  that  a  written  instrument, 
drawn  professedly  to  carry  out  the  agreement  of  the  parties 
previously  entered  into,  is  executed  under  the  misapprehen- 
sion that  it  really  embodies  the  agreement,  whereas,  by 
mistake  of  the  draftsman,  either  as  to  fact  or  law,  it  fails 
to  fulfill  that  purpose,  equity  will  correct  the  mistake  by 
reforming  the  instrument  in  accordance  with  the  previous 
agreement.1 

Mistake  must  be  Mutual  to  Admit  of  Reformation. 

In  all  cases  where  a  court  of  equity  is  asked  to  reform  a 
written  instrument  because  of  mistake  of  fact,  it  must  ap- 
pear that  the  mistake  is  mutual.2  A  court  of  equity  has 
no  power  to  alter  or  reform  an  agreement  made  between 
parties,  since  this  would  be  in  truth  a  power  to  contract 

«  McHarry  v.~Irvin,  85  Ky.  322,  3  S.  W.  374,  4  S.  W.  800;  Epes 
v.  Williams'  Adm'r  (Va.)  17  S.  E.  235;  Cocking  v.  Pratt,  1  Ves.  Sr. 
400;  Millar  v.  Craig,  6  Beav.  433. 

§  117.  i  Trusdell  v.  Lehman,  47  N.  J.  Eq.  218,  20  Atl.  391;  Keis- 
ter  v.  Myers,  115  Ind.  312,  17  N.  E.  161,  3  Keener,  Eq.  Cas.  314; 
Adams  v.  Wheeler,  122  Ind.  251,  23  N.  E.  760;  Knight  v.  Glasscock, 
51  Ark.  390,  11  S.  W.  580;  Andrews  v.  Andrews,  81  Me.  337,  17  Atl. 
166. 

2  Jackson  v.  Andrews,  59  N.  Y.  244;  Nevius  v.  Dunlap,  33  N.  Y. 
676;  Mead  v.  Insurance  Co.,  64  N.  Y.  453;  Cooper  v.  Insurance  Co., 
50  Pa.  299,  88  Am.  Dec.  544;  Ludington  v.  Ford,  33  Mich.  123;  Juzan 
v.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448;  Kornegay  v.  Everett,  99 
N.  C.  30,  5  S.  E.  418. 


276  GROUNDS    OF  EQUITABLE   RELIEF MISTAKE.       (Ch.    1'2 

for  them;  but  merely  to  correct  the  writing  executed  as 
evidence  of  the  agreement,  so  as  to  make  it  express  what 
the  parties  actually  agreed  to.  It  follows  that  the  mistake 
which  it  may  correct  in  such  a  writing  must  be  mutual; 
that  is,  such  a  mistake  in  the  drafting  of  the  writing  as 
makes  it  cover  the  intent  or  meaning  of  neither  party  to 
the  contract.*  To  entitle  the  plaintiff  to  a  reformation  of 
the  contract,  he  must  prove  that  it  was  the  intention  of 
both  parties  to  make  a  contract  such  as  he  seeks  to  have 
established,  and  that  this  intention  was  frustrated,  either 
from  some  fraud,  accident,  or  mutual  mistake  of  the  par- 
ties.4 When  one  of  the  parties  signs  a  contract  which  con- 
tains the  whole  agreement  as  he  understands  it,  the  other 
party  cannot  assert  that  the  true  agreement  was  different 
in  an  important  particular,  and  demand  a  reformation  ac- 
cordingly.8 But  where  an  instrument  does  not  truly  ex- 
press the  agreement  of  the  parties,  and  one  of  the  parties 
is  ignorant  of  this  fact,  the  other  party,  who,  with  knowl- 
edge of  the  ignorance  of  the  other,  has  kept  silent  when 
he  should  have  spoken,  cannot  defeat  a  reformation  by  al- 
leging that  he  knew  that  the  instrument  was  different  from 
the  agreement.8  It  is  not  intended  to  state  the  principles 
relative  to  the  reformation  of  a  written  instrument.  Such 
principles,  and  a  discussion  thereof,  will  be  contained  in  a 
separate  chapter.7 

When  Contract  has  been  Executed. 

There  is  no  doubt  but  that  a  court  of  equity  has  the  same 
power  to  correct  a  mistake  occurring  in  an  executed  con- 
tract as  in  an  executory  contract.  The  annulling  or  reform- 
ing of  an  executed  transaction  is  an  exercise  of  supreme 
judicial  power,  and  should  be  exercised  with  great  caution; 
and,  when  invoked  on  the  ground  of  mistake,  a  plain  case 

•  Dlman  v.  Railroad  Co.,  5  R.  1. 130,  8  Keener,  Eq.  Cas.  256. 

*  Jackson  v.  Andrews,  59  N.  Y.  244.    And  see  Kilmer  v.  Smith,  77 
N.  Y.  226,  33  Am.  Rep.  613,  3  Keener,  Eq.  Cas.  303;  Gould  Y.  Emer- 
•on,  160  Mass.  438,  35  N.  E.  1065,  3  Keener,  Eq.  Cas.  324. 

»  Roemer  v.  Conlon,  45  N.  J.  Eq.  234,  19  Atl.  664,  Ellison  v.  Foi, 
88  Minn.  454,  38  N.  W.  358. 

«  Roszell  v.  Roszell,  109  Ind.  354,  10  N.  E.  114;  Gray  v.  Supreme 
Lodu'f.  118  Ind.  295,  297,  20  N.  E.  833, 

»  Tost,  c.  24. 


§    117)  MISTAKE    OF    EXPRESSION.  277 

should  be  made  before  it  is  exerted.  These  considerations 
address  themselves  to  the  sound  discretion  of  the  chan- 
cellor, and  should  not  prevent  the  interference  of  equity 
when  the  proper  occasion  for  interference  arises.  The 
granting  or  refusing  of  equitable  relief  on  the  ground  of 
mistake  may  depend,  to  some  extent,  on  the  fact  whether 
the  contract  is  executed  or  executory.  The  court  might 
very  well  refuse  the  specific  performance  of  a  contract  for 
the  sale  of  land,  in  respect  to  which  a  mistake  is  alleged, 
and  leave  the  party  to  his  remedy  at  law,  when  it  would 
not  interfere  if  the  contract  had  been  executed.  But  where, 
in  the  case  of  a  deed  conveying  real  estate,  a  mistake  is 
admitted  or  proved,  the  fact  that  the  title  has  passed,  and 
the  purchase  money  has  been  paid  or  secured,  will  not  pre- 
clude the  court  from  granting  relief,  on  the  mistake  being 
discovered.8 

Mistakes  Apparent  on  Face  of  Instrument. 

Both  at  law  and  in  equity,  rules  for  the  interpretation  of 
written  instruments  have  been  established  from  ancient  times 
in  order  to  eliminate  and  correct  mistakes  of  expression. 
Clerical  errors  and  omissions,  which  could  be  accurately 
corrected  or  supplied  from  the  context  of  the  instrument, 
and  mere  grammatical  mistakes  therein,  can  be  remedied.9 
A  mistake  in  the  description  of  land  in  a  deed  may  be  cor- 
rected,10 as  may  also  a  gross  error  in  the  amount  conveyed, 
when  not  conveyed  by  name  of  lot,  or  by  clear  and  under- 
stood bounds.11 

The  use  of  the  term  "more  or  less,"  following  the  enu- 

»  Paine  v.  Upton,  87  N.  Y.  327,  41  Am.  Rep.  371,  3  Keener,  Eq. 
Cas.  286;  Wilson  v.  Randall,  67  N.  Y.  338;  Darling  v.  Osborne,  51 
Vt.  148. 

»  Leach  v.  Micklen,  6  East,  486;  Redfern  v.  Bryning,  6  Ch.  Div. 
133;  Salt  v.  Pym,  28  Ch.  Div.  155;  Monmouth  Park  Ass'n  v.  Iron 
Works,  55  N.  J.  Law,  132,  26  Atl.  140;  Ketchum  v.  Spurlock,  34  W. 
Va.  597,  12  S.  E.  832. 

10  Dozier  v.  Mitchell,  65  Ala,  511;  Turner  v.  Kelly,  70  Ala,  85,  3 
Keener,  Eq.  Cas.  92;  Mills  v.  Lockwood,  42  111.  Ill;  Wilcox  v.  Lucas, 
121  Mass.  21;  Dwight  v.  Tyler,  49  Mich.  614,  14  N.  W.  567;  Fuchs  v. 
Treat,  41  Wis.  404. 

11  Winston  v.  Browning,  61  Ala.  80;  Noble  v.  Googins,  99  Mass. 
231;  Ladd  v.  Pleasants,  39  Tex.  415. 


278  GROUNDS    OF   EQUITABLE    RELIEF MISTAKE.       (Ch.    12 

meration  of  the  number  of  acres  to  be  conveyed,  is  not  a 
fatal  objection  to  interference,  except  where  the  discrepancy 
is  slight.  These  words  do  not  import  a  special  engagement 
that  the  purchaser  takes  the  risk  of  the  quantity;  and, 
while  their  presence  may  render  it  more  difficult  to  prove 
such  a  mistake  as  will  justify  the  interference  of  equity, 
they  are  not  equivalent  to  a  stipulation  that  the  mistake, 
when  ascertained,  shall  not  be  a  ground  of  relief.  Such 
words  are  intended  to  cover  small  discrepancies  between 
the  actual  quantity  and  that  stated  in  the  contract  or  deed, 
and  no  inference  of  mistake  would  arise  from  a  small  dis- 
crepancy merely.  But  where  the  difference  is  material,  and 
the  mistake  is  confessed,  or  satisfactorily  proved,  there  is 
no  violation  of  principle  in  granting  relief.12 

And  where  there  is  a  mistake  in  the  location  of  the  land, 
cither  in  whole  or  in  part,  it  may  be  rectified.18  And  a 
mortgage  of  land  which,  by  mistake,  does  not  cover  all 
that  was  intended,  may  be  rectified,  even  against  the  wife 
who  released  her  dower.14  And  generally  the  mistakes  of 
a  scrivener  in  preparing  an  instrument  may  be  corrected  in 
equity.18 

Parol  Evidence  to  Correct  Mistakes  in  Written  Instruments. 
It  is  a  rule,  both  of  law  and  equity,  that  parol  evidence 
is  not  admissible  to  vary  a  written  instrument.  But  there 
is  a  well-established  exception  to  this  rule  in  the  case  of 
mistake,  fraud,  accident,  or  surprise.  Courts  of  equity  have 
never  hesitated  to  entertain  jurisdiction  to  reform  a  con- 
tract where  a  fraudulent  suppression,  omission,  or  insertion 

«  Paine  v.  Upton,  87  N.  Y.  327,  41  Am.  Rep.  371,  Keener,  Eq. 
Cas.  286;  Belknap  v.  Sealey,  14  N.  Y.  143,  67  Am.  Dec.  120;  Hosletori 
v.  Dickinson,  51  Iowa,  244,  1  N.  W.  550;  Noble  v.  Googlns,  99  Mass. 
231.  But  see  Ketchum  v.  Stout,  20  Ohio,  453;  Stull  v.  Hurtt,  9 
Gill  (Mil.)  446. 

i»  Spun*  v.  Benedict,  99  Mass.  463;  Sulvey  v.  Baker,  37  Cal.  465; 
Watts  v.  Cummins,  59  Pa,  84;  Best  v.  Stow,  2  Sandf.  Ch.  (N.  Y.) 
298;  Allen  v.  Yeater,  17  W.  Va.  128;  Fuchs  v.  Treat,  41  WIs.  404. 

i«  Chapman  v.  Field,  70  Ala.  403. 

i»  Stone  v.  Hale,  17  Ala.  557,  52  Am.  Dec.  185;  Hartford  &  S.  Ore 
Co.  v.  Miller,  41  Conn.  112;  Sowler  v.  Day,  58  Iowa.  252,  12  N.  W. 
297;  Wllcox  v.  Lucas,  121  Mass.  21;  Van  Donge  v.  Van  Donge.  23 
Mich.  321;  Huss  v.  Morris,  63  Pa.  367;  Allen  v.  Brown,  6  R.  I.  386; 
Elliott  v.  Sackett,  108  U.  S.  133,  2  Sup.  Ct.  375,  27  L.  Ed.  678;  Drury 
.¥.  Hayden,  111  U.  S.  223,  4  Sup.  Ct.  405,  28  L.  Ed.  408. 


§    117)  MISTAKE    OP    EXPRESSION.  279 

of  a  material  stipulation  exists,  notwithstanding  that  it 
breaks  in,  to  some  extent,  on  the  uniformity  of  the  rule  as 
to  the  exclusion  of  parol  evidence  to  control  written  con- 
tracts. And  the  same  may  be  said  in  regard  to  a  contract 
entered  into  under  a  mistake  of  a  material  fact.18  This  ex- 
ception is  based  upon  the  same  policy  as  the  rule  itself; 
that  is,  the  desire  to  suppress  fraud,  and  to  promote  gen- 
eral good  faith  and  confidence  in  the  formation  of  contracts. 
If  the  mistake  is  admitted  by  both  parties,  equity  will  per- 
mit the  introduction  of  parol  evidence  to  vary  the  terms  of 
the  instrument ;  and,  if  it  can  be  proved  by  evidence  equiva- 
lent to,  or  as  satisfactory  as,  an  admission,  the  same  rea- 
sons exist  for  granting  relief.11 

Effect  of  Statute  of  Frauds. 

The  statute  of  frauds,  which  requires  certain  contracts  to 
be  in  writing,  cannot  prevent  a  variance  of  the  terms  of 
a  contract  for  the  purpose  of  rectifying  a  mistake  there- 
in. The  question  of  the  admissibility  of  parol  evidence 
to  vary  the  terms  of  such  contracts  generally  arises  in 
suits  for  the  specific  performance  thereof.  It  has  been  gen- 
erally held  by  the  courts  that  such  parol  evidence  may  be 
admitted  to  show  that  the  contract  sought  to  be  enforced 
does  not,  because  of  mistake,  conform  with  the  real  inten- 
tions of  the  parties.18  All  courts,  both  English  and  Ameri- 


i«  Story,  Eq.  Jur.  §<S  153-155;  Murray  v.  Parker,  19  Bear.  305,  308; 
Greer  v.  Caldwell,  14  Ga.  215,  58  Am.  Dec.  553;  Rogers  v.  Saunders, 
16  Me.  92,  33  Am.  Dec.  635;  Glass  v.  Hulbert,  102  Mass.  34,  3  Am. 
Rep.  418;  Patterson  v.  Bloomer,  35  Conn.  57;  Harding  v.  Long,  103 
N.  C.  1,  9  S.  E.  445,  14  Am.  St  Rep.  775;  Walden  v.  Skinner,  101  U. 
S.  577,  583,  25X.  Ed.  963.  , 

if  Davis  v.  Symonds,  1  Cox,  402,  404p;  Fowler  v.  Fowler,  4  De 
Gex  &  J.  250;  Stockbridge  Iron  Co.  v.  Iron  Co.,  107  Mass.  290,  3 
Keener,  Eq.  Cas.  54;  Nevius  v.  Dunlap,  33  N.  Y.  676;  Marsh  v.  Marsh, 
74  Ala.  418;  Hutch  inson  v.  Ains worth,  73  Gal.  458,  15  Pac.  82,  2  Am. 
St.  Rep.  823;  Maxwell  Land-Grant  Case,  121  U.  S.  325,  7  Sup.  Ct. 
1015,  30  L.  Ed.  949. 

is  Quinn  v.  Roath,  37  Conn.  16;  Osborn  v.  Phelps,  19  Conn.  63,  48 
Am.  Dec.  133;  Campbell  v.  Durham,  86  Ala.  299,  5  South.  507;  Ring 
v.  Ashworth,  3  Iowa,  452;  Mansfield  v.  Sherman,  81  Me.  365,  17  Atl. 
300;  Chambers  v.  Livermore,  15  Mich.  389;  Berry  v.  Whitney,  40 
Mich.  65;  Caldwell  v.  Depew,  40  Minn.  528,  42  N.  W.  479;  Ryno  v. 
Darby,  20  N.  J.  Eq.  231;  Stoutenburgh  v.  Tompkins,  9  N.  J.  Eq.  332; 
Gillespie  v.  Moon,  2  Johns.  Ch.  (N.  Y.)  585,  7  Am.  Dec.  559;  Coles  v. 


280  GROUNDS    OF   EQUITABLE    RELIEF MISTAKE.       (Ch.    12 

can,  have  agreed  that  such  evidence  is  admissible  in  a  suit 
for  specific  performance,  where  there  has  been  a  partial 
performance  of  the  omitted  parol  provision  by  the  plain- 
tiff.10 Where  there  has  been  no  such  partial  performance, 
the  courts  have  not  been  unanimous  as  to  such  question, 
although  the  preponderance  of  authority  is  in  favor  of  ad- 
mitting parol  evidence  to  vary  the  terms  of  a  contract  sought 
to  be  enforced  without  regard  to  a  partial  performance  of 
the  omitted  parol  provisions.20 

Where  the  plaintiff,  in  an  action  for  the  specific  perform- 
ance of  a  contract,  asks  that  the  contract  be  reformed  to 
rectify  a  mistake,  and  enforced  as  so  reformed,  the  ques- 
tion also  arises  as  to  whether,  in  the  admission  of  parol  evi- 
dence as  to  such  mistake,  there  is  not  a  violation  of  the  stat- 
ute of  frauds.  It  may  be  correctly  assumed  that  such  con- 
tract as  so  reformed  does  not  comply  with  the  provisions  of 
the  statute ;  but  it  has  been  generally  held  that  such  noncom- 
pliance  does  not  prevent  the  intervention  of  equity  to  re- 
form the  instrument,  and  decree  its  enforcement  as  reform- 
ed.21 To  permit  the  statute  to  so  interfere  in  the  adminis- 
tering of  equitable  remedies  would  deprive  it  of  its  efficacy 
as  an  instrument  for  the  prevention  of  injustice  to  inno- 
cent parties.  Equity  does  not  deny  or  overrule  the  statute, 
but  it  declares  that  fraud  or  mistake  creates  obligations, 
and  confers  remedial  rights  which  are  not  within  the  statu- 

Bowne,  10  Paige  (N.  Y.)  526;  Dennis  v.  Dennis,  4  Rich.  Eq.  (S.  C.) 
807. 

"Gllroy  v.  Alls,  22  Iowa,  174;  Legal  v.  Miller,  2  Ves.  Sr.  299; 
Price  v.  Dyer,  17  Ves.  356;  Glass  v.  Hurlburt,  102  Mass.  24,  28,  3 
Keener,  Eq.  Cas.  327;  Beardsley  v.  Duntley,  69  N.  Y.  577;  Tilton  v. 
Tilton,  9  N.  H.  385;  Hitchins  v.  Pettiiigill,  58  N.  H.  386,  3  Keener, 
Eq.  Cas.  344,  371. 

ao  Clopton  v.  Martin,  11  Ala,  187;  Murphy  v.  Rooney,  45  Cal.  78; 
Thompson ville  Scale  Mfg.  Co.  v.  Osgood,  26  Conn.  16;  Rogers  v. 
Atkinson,  1  Ga.  12;  Broadwell  v.  Broadwell,  6  111.  599;  Hunter  v. 
Bilyeu,  30  111.  228;  Hallam  v.  Corlett,  71  Iowa,  446,  32  N.  W.  449; 
Hall  v.  Clagett,  2  Md.  Ch.  151;  Craig  v.  Kittredge,  23  N.  H.  231; 
De  Peyster  v.  Hasbrouck,  11  N.  Y.  582;  Beardsley  v.  Duntley,  60  N. 
Y.  577;  Webster  v.  Harris,  16  Ohio,  490. 

21  Murphy  v.  Rooney,  45  Oal.  78;  Provost  v.  Hoi >n inn.  21  Iowa, 
419;  Wright  v.  McCromlck,  22  Iowa,  545;  Hunter  v.  Bilyeu,  30  111. 
228;  Kelsselbrack  v.  Livingston,  4  Johns.  Ch.  (N.  Y.)  144;  Coles  v. 
Bowne,  10  Paige  (N.  Y.)  520,  535;  Beardsley  y.  Duntley,  69  N.  Y. 
077;  Blodgett  v.  Hobart,  18  Vt  414. 


§   117)  MISTAKE   OF    EXPRESSION.  281 

tory  prohibition.      In  respect  to  them  the  statute  is  up- 
lifted.22 

Defective  Execution  of  Powers. 

One  of  the  most  useful  heads  of  the  jurisdiction  of  equity 
in  relieving  against  mistake  and  accident  is  in  interfering 
in  aid  of  the  execution  of  powers.  The  principle  on  which 
this  equitable  jurisdiction  is  based  has  been  stated  thus : 
"Whenever  a  man,  having  power  over  an  estate,  whether 
of  ownership  or  not,  in  discharge  of  his  moral  or  natural 
obligations,  shows  an  intention  to  execute  such  power,  the 
court  will  operate  upon  the  conscience  of  the  heir  or  other 
person  benefited  by  the  default  to  make  him  perfect  this 
intention."  23  But,  if  there  is  no  execution  of  the  power, 
or  no  contract  requiring  such  execution,  the  court  cannot 
interpose;  for,  unless  the  power  is  in  the  nature  of  a  trust, 
the  donee  has  his  choice  to  execute  it  or  not;  and,  if  he 
does  not  execute,  or  attempt  to  execute,  there  is  no  equity 
to  execute  for  him,  or  to  do  that  for  him  which  he  did  not 
think  fit  to  do  for  himself.2*  Nor  can  an  execution  be 
aided  in  equity  if  the  defect  be  not  formal,  but  in  the  sub- 
stance of  the  power,  for  such  aid  would  defeat  the  intention 
of  the  donor.25  The  only  persons  in  whose  favor  equity 
will  interpose  to  supply  the  defect  in  the  execution  of  a 
power  are  a  bona  fide  purchaser  for  a  valuable  consideration, 
a  creditor,  a  charity,  a  wife,  or  a  legitimate  child ;  and  such 
character  of  purchaser,  creditor,  wife,  or  child  must  be 
borne  by  the  party  claiming  relief  in  relation  to  the  donee 
of  the  power,  and  not  to  the  person  creating  the  power.28 

*2  Pom.  Bq.  Jur.  §  867. 

as  Chapman  v.  Gibson,  3  Brown,  Ch.  229. 

2*  Toilet  v.  Toilet,  2  P.  Wms.  489;  Johnson  v.  Gushing,  15  N.  H. 
298,  41  Am.  Dec.  694;  Howard  v.  Carpenter,  11  Md.  259. 

26  Kerr,  Fraud  &  M.  p.  440. 

2«  Kerr,  Fraud  &  M.  p.  440;  Hughes  v.  Wells,  9  Hare,  769;  Affleck 
v.  Affleck,  3  Smale  &  G.  394;  Innes  v.  Sayer,  7  Hare,  377;  Hervey  v. 
Hervey,  1  Atk.  567;  Medwin  r.  Sandham,  3  Swanst  686;  Proby  v. 
Landor,  28  Beav.  504. 


282  GROUNDS    OF    EQUITABLE    RELIEF MISTAKE.       (Ch.    12 


RESTORATION  OF  PARTIES. 

118.  As  a  general  rule,  he  •who  seeks  to  be  re- 
lieved from  the  consequences  of  a  mistake 
must  see  that  the  party  against  whom  re- 
lief is  sought  is  remitted  to  the  position  he 
occupied  before  the  transaction  in  which  the 
mistake  occurred.1 

This  rule  is  of  general  application  in  all  cases  where  relief 
is  sought  against  accident,  mistake,  and  fraud,  and  is  based 
upon  the  equitable  maxim  that  he  who  seeks  equity  must 
do  equity.  A  court  of  equity  is  always  reluctant  to  rescind 
a  contract  because  of  a  mistake  of  fact,  unless  the  parties 
can  be  put  back  in  statu  quo.  If  this  cannot  be  done,  it 
will  give  such  relief  only  where  the  clearest  and  strongest 
equity  imperatively  demands  it.2  But  in  the  leading  case 
of  Beauchamp  v.  Winn  8  it  was  stated  that,  where  two  par- 
ties to  a  contract  are  mutually  mistaken  as  to  their  rights, 
occasioning  an  injury  to  one  of  them,  the  court  will  not  de- 
cline to  grant  the  relief,  if  a  clear  case  is  established,  merely 
because,  on  account  of  the  circumstances  which  have  inter- 
vened since  the  contract  was  made,  it  has  become  difficult  to 
restore  the  parties  to  their  original  condition.  But  in  a  re- 
cent case  in  Pennsylvania  it  was  held  that  equity  will  not  af- 
ford relief  in  cases  of  mutual  mistake  of  legal  rights,  where  it 
is  impossible  to  restore  both  parties  to  their  former  posi- 
tion.4 And,  if  the  rights  of  innocent  third  parties  have  in- 
tervened, and  relief  cannot  be  had  except  by  affecting  those 
rights,  a  court  of  equity  will  not  interfere.5 

§  118.  i  Neblett  T.  MacFarland,  92  U.  S.  101,  23  L.  Ed.  471,  3 
Keener,  Eq.  Gas.  693;  Hammond  v.  Pennock,  61  N.  Y.  145,  3  Keener, 
Eq.  Cas.  (588;  Masson  v.  Bovet,  1  Denio  (N.  Y.)  69,  43  Am.  Dec.  651. 

2  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798,  3  Keener,  Eq. 
Cas.  175,  180. 

•  L.  R.  6  H.  L.  223,  233.    But  see  In  re  Saxon  Life  Assur.  Soc.,  2 
Johns.  &  H.  408.  413. 

«  Fink  v.  Bank,  178  Pa.  154,  35  Atl.  636. 

•  Maiden  v.  Menlll.  2  Atk.  8;  Warrick  v.  Warrick,  3  Atk.  293: 
llacknet  T.  Macknet,  29  N.  J.  Eq.  54. 


§  119)     GROUNDS  OF  EQUITABLE  RELIEF FRAUD.       283 

CHAPTER    XIII. 

GROUNDS  OF  EQUITABLE  RELIEF— FRAUD. 

119.  Equitable  Jurisdiction  in  Cases  of  Fraud. 

120.  What  Constitutes  Fraud. 

121-124.     Classification  of  Fraud.  *  *. 

125.  Actual  Fraud. 

126.  Misrepresentation. 

127.  Fraudulent  Concealment. 

128.  Remedies  of  Defrauded  Party. 

129.  Constructive  Fraud. 

129^.         Apparent  from  Nature  of  Bargain. 

130.  Inferred  from  Condition  of  Parties. 

131-132.  Transactions  with  Persons  Totally  or  Partially  Inca- 

pacitated. 

133.  Transactions  with  Persons  under  Duress  or  Undue 

Influence. 

134.  Transactions  between  Persons  in  Fiduciary  Relation- 

ship. 

135.  Gifts  between  Persons  in  Fiduciary  Relationship. 

136.  Ratification,  Confirmation,  or  Acquiescence. 
187-139.  Fraud  upon  Third  Persons  not  Parties  to  the  Contract. 

140.  Frauds  upon  Creditors. 

141.  Compositions  with  Creditors. 
142-143.  Fraudulent  Conveyances. 
144-145.  Creditor  to  be  Defrauded. 

146.  Intent  to  Defraud. 

147.  Transfer  of  Property. 

148.  Fraud  on  Marital  Rights. 

149.  Fraud  on  Powers. 

EQUITABLE  JURISDICTION  IN  CASES  OF  FRAUD. 

119.  As  a,  general  rule,  courts  of  equity  exercise  a 
general  jurisdiction  in  cases  of  fraud,  some- 
times concurrent  with,  and  sometimes  exclu- 
sive of,  other  courts.  The  single  exception 
to  this  rule  is  in  the  case  of  •wills.1 

Courts  of  equity,  from  their  inception,  exercised  juris- 
diction in  matters  of  fraud.  There  is  no  field  of  equitable 

§  119.  i  Story,  Eq.  Jur.  §  184;  Earl  of  Chesterfield  v.  Janssen,  2 
Ves.  Sr.  125;  Id.,  1  Atk.  301;  1  White  &  T.  Lead.  Cas.  Eq.  pt  2,  p. 
624. 


284  GROUNDS    OF    EQUITABLE    RELIEF FRAUD.         (Ch.   13 

jurisdiction  which  has  been  as  fruitful  of  substantial  justice, 
and  in  no  other  class  of  cases  have  courts  of  equity  so 
often  administered  equitable  remedies.  .The  English  rule 
seems  to  be  that  the  jurisdiction  of  equity  may  be  applied 
in  every  case  of  fraud,  without  regard  to  the  rights  of 
the  parties  affected  thereby,  and  the  remedies  which  are 
sought ;  and  such  jurisdiction  may  be  exercised  even  though 
courts  of  law  have  a  concurrent  jurisdiction  of  the  case,  and 
can  administer  the  same  kind  of  relief.  As  has  often  been 
said  by  the  ablest  English  judges,  one  of  the  occasions  for 
the  existence  of  a  separate  court  of  chancery  was  its  power 
to  deal  with  all  cases  of  fraud.  Its  original  grant  of  juris- 
diction covered  fraud  in  all  its  forms  and  phases.2  The 
jurisdiction  of  the  common-law  courts  over  such  cases  was 
of  a  later  growth.  In  fact,  at  an  early  time  there  was  no  de- 
fense based  on  the  fraud  of  the  plaintiff  in  an  action  brought 
at  common  law  to  enforce  covenants,  debts,  and  other  ob- 
ligations ex  contractu.  It  was  not  until  the  invention  of 
the  common-law  actions  of  assumpsit,  case,  and  trover  that 
courts  of  law  were  enabled  to  afford  relief  on  the  ground  of 
fraud.  It  is  a  familiar  doctrine  that  courts  of  equity  can- 
not be  deprived  of  jurisdiction  originally  possessed  by  them 
by  the  assumption  of  a  similar  jurisdiction  by  courts  of  law. 
The  American  rule  is  not  so  favorable  to  the  exercise  of 
equitable  jurisdiction  in  cases  of  fraud  of  every  kind  and 
species.  Mr.  Pomeroy  states  the  doctrine  to  be  "that  the 
exclusive  jurisdiction  to  grant  purely  equitable  remedies, 
such  as  cancellation,  will  not  be  exercised,  and  the  concur- 
rent jurisdiction  to  grant  pecuniary  recoveries  does  not  ex- 
ist, in  any  case  where  the  legal  remedy,  either  affirmative 
or  defensive,  which  the  defrauded  party  might  obtain,  would 
be  adequate,  certain,  and  complete ;  *  *  *  *  that,  when 
the  estate  or  interest  is  equitable,  the  jurisdiction  exists,  and 

«  Hill  v.  Lane,  L.  R.  11  Eq.  215;  Ogllvle  v.  Currie,  37  Law  J.  Ch. 
541;  Ramshlre  v.  Bolton,  L.  R.  8  Eq.  294;  Blair  v.  Bromley,  5  Hare, 
65G;  Slim  v.  Croucher,  1  De  Gex,  F.  &  J.  518. 

•  Pom.  Eq.  Jur.  §  914;  Town  of  Grand  Chute  y.  Winegar,  15  Wall. 
873.  21  L.  Ed.  174;  Phoenix  Mut.  Life  Ins.  Co.  v.  Bailey,  13  Wall. 
610,  20  L.  Ed.  501;  Jones  v.  Bolles,  9  Wall.  304,  19  L.  Ed.  734;  Bas- 
sett  v.  Brown,  100  Mass.  355;  Suter  v.  Matthews,  115  Mass.  253; 
Plscataqua  Fire  &  Marine  Ins.  Oo.  v.  Hill,  60  Me.  178,  183;  Miller 
y.  Scammon,  52  N.  H.  609.  And  see  Buzard  v.  Houston,  119  U.  S. 
847,  7  Sup.  Ct  249,  30  L.  Ed.  431,  3  Keener,  Eq.  Gas.  487;  Tllllson 


§    119)       EQUITABLE    JURISDICTION    IN    CASES    OF    FRAUD.  285 

will  always  be  exercised.  Where  the  estate,  interest,  or 
right  is  legalj  and  the  remedies  are  equitable,  the  jurisdiction 
always  exists,  but  will  not  always  be  exercised.  Where  the 
right  is  legal,  and  the  remedy  is  pecuniary  and  legal,  the 
jurisdiction  is  concurrent,  and  only  exists  where  the  rem- 
edy at  law  is  inadequate."  * 

Frauds  in   Wills. 

For  more  than  a  century  the  English  courts  have  refused 
to  exercise  jurisdiction  to  set  aside  the  probate  of  a  will. 
It  is  now  recognized  as  a  general  rule  in  such  courts,  and 
in  the  courts  of  this  country,  that  equity  cannot  afford  re- 
lief in  such  cases.5  The  reasons  given  for  a  refusal  to  in- 
tervene in  such  cases  are  not  satisfactory.  In  England  it 
was  generally  ascribed  to  the  fact  that  ecclesiastical  courts 
had  exclusive  jurisdiction  to  entertain  questions  as  to  the 
validity  of  wills  of  personal  property,  and  as  to  wills  of  real 

v.  Ewing,  87  Ala,  350,  6  South.  276;  Taylor  v.  Taylor,  74  Me.  582; 
Fitzmaurice  v.  Hosier,  116  Ind.  365,  16  N.  E.  175,  19  N.  E.  180. 

*  Pom.  Eq.  Jur.  §  914. 

Cancellation  of  instruments:  Hammond  v.  Pennock,  61  N.  T.  145, 
3  Keener,  Eq.  Cas.  688;  Fisher  v.  Hersey,  78  N.  Y.  387;  Hackley  v. 
Draper,  60  N.  Y.  88;  Willemin  v.  Dunn,  93  111.  511;  Fuller  v.  Perci- 
vaJ,  126  Mass.  381;  Pfelfer  v.  Snyder,  72  Ind.  78;  Globe  Mut.  Life 
Ins.  Co.  v.  Reals,  79  N.  Y.  202;  Dunaway  v.  Robertson,  95  111.  419; 
Compton  v.  Bank,  96  111.  301,  36  Am.  Rep.  147;  Briggs  v.  Johnson, 
71  Me.  235;  Lavassar  v.  Washburne,  50  Wis.  200,  6  N.  W.  516. 

Cancellation  of  judgments:  Hunt  v.  Hunt,  72  N.  Y.  217,  28  Am. 
Rep.  129;  Harbaugh  v.  Hohn,  52  Ind.  243;  Han-is  v.  Cornell,  80  111. 
54;  Babcock  v.  McCamant,  53  111.  214;  Huxley  v.  Rice,  40  Mich. 
73;  U.  S.  v.  Throckmorton,  98  U.  S.  61,  25  L.  Ed.  93;  Kelly  v.  Chris- 
tal,  81  N.  Y.  619;  Cairo  &  F.  R.  Co.  v.  Titus,  27  N.  J.  Eq.  102;  Barber 
v.  Rukeyser,  39  Wis.  590. 

Pecuniary  recoveries:  Getty  v.  Devlin,  70  N.  Y.  504;  Stephens  v. 
Board,  79  N.  Y.  183,  35  Am.  Rep.  511;  Mario w  v.  Mario w,  77  111.  633; 
Frue  v.  Loring,  120  Mass.  507;  Bassett  v.  Brown,  100  Mass.  355; 
Suter  v.  Matthews,  115  Mass.  253;  Jewett  v.  Bowman,  29  N.  J.  Eq. 
174. 

Matters  of  administration:  Fulton  v.  Whitney,  5  Hun  (N.  Y.)  16; 
Kellogg  v.  Aldrich,  39  Mich.  576. 

Miscellaneous:  Struve  v.  Childs,  63  Ala.  473;  Leupold  v.  Krause. 
95  111.  440;  Dickinson  v.  Seaver,  44  Mich.  624,  7  N.  W.  182;  Grubb's 
Appeal,  90  Pa,  228;  Williamson  v.  Carskadden,  36  Ohio  St.  664. 

e  Simmons  v.  Saul,  138  U.  S.  439,  11  Sup.  Ct.  369,  34  L.  Ed.  1054; 
Case  of  Broderick's  Will,  21  Wall.  503,  22  L.  Ed.  599;  Gains  v.  Chew, 
2  How.  645,  11  L.  Ed.  402;  Bailey  v.  Briggs,  56  N.  Y.  407;  Kerrich 
v.  Bransby,  7  Brown,  Parl.  Cas.  437;  Jones  v.  Jones,  3  Mer.  171. 


286       GROUNDS  OF  EQUITABLE  BELIEF FRAUD.    (Ch.  13 

property  such  questions  were  within  the  jurisdiction  of  the 
common-law  courts.6  The  statutes  of  the  several  states 
providing  for  the  probate  of  wills  have  declared  as  to  the 
jurisdiction  of  the  probate  courts  in  determining  questions 
involving  the  validity  of  such  wills,  and  as  to  the  effect  of 
the  decrees  of  such  courts  in  respect  thereto. 

WHAT  CONSTITUTES  FRAUD. 

120.  Fraud,  in  the  contemplation  of  equity,  prop- 
erly includes  all  acts,  omissions,  or  con- 
cealment -which,  involves  a  breach  of  equi- 
table duty,  trust,  or  confidence  justly  reposed, 
and  -which  are  injurious  to  another,  or  by 
•which  an  undue  and  unconscientious  advan- 
tage is  taken  of  another.1 

The  term  "fraud"  is  used  in  a  more  comprehensive  sense 
in  courts  of  equity  than  in  courts  of  law.  What  constitutes 
fraud  at  law  will  always  be  treated  as  fraud  in  equity,  but 
there  are  many  acts  deemed  fraudulent  in  equity  which  are 
not  so  considered  at  law.  Equity  will  not  only  relieve 
against  actual  deception,  but  it  will  extend  its  interference 
in  all  cases  of  unfair  dealing,  and  prevent  the  dishonest 
circumvention  of  one  person  by  another.  To  define  the 
equitable  conception  of  fraud  is  not  possible.  The  fertility 
of  man's  invention  in  devising  new  schemes  of  fraud  is  so 
great  that  courts  of  equity  have  declined  the  hopeless  at- 
tempt of  embracing  in  one  formula  all  its  varieties  of  form 
and  color,  reserving  to  themselves  the  liberty  to  deal  with 
it  under  whatever  form  it  may  present  itself.8  As  has  been 
said:  "Fraud  is  infinite,  and,  were  courts  of  equity  once 
to  lay  down  rules  as  to  how  far  they  would  go,  and  no  fur- 
ther, in  extending  their  relief  against  it,  or  to  define  strictly 
the  species  or  evidence  of  it,  the  jurisdiction  would  be 

•  Allen  v.  McPherson,  1  H.  L.  Cas.  191;  Archer  v.  Mosse,  2  Vern. 
8;  Gingell  v.  Home,  9  Sim.  539. 

§  120.  i  Story,  Eq.  Jur.  §  187.  And  see  1  Fonbl.  Eq.  book  1,  c.  2, 
I  3;  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sr.  155,  156;  Smith,  Eq. 
153;  Kerr,  Fraud  &  M.  p.  42;  Pom.  Eq.  Jur.  §  875. 

*  Kerr,  Fraud  &  M.  p.  42;  Pom.  Eq.  Jur.  $  873. 


§§    121-124)  CLASSIFICATION    OF    FRAUD.  287 

cramped,  and  perpetually  eluded  by  new  schemes  which  the 
fertility  of  man's  invention  would  contrive."  8  The  descrip- 
tion of  fraud  as  stated  in  the  black-letter  text  has  been  fre- 
quently used  by  text  writers,  and  is  sufficiently  comprehen- 
sive to  include  almost  all  of  the  species  of  fraud  which  are 
likely  to  arise. 


CLASSIFICATION  OF  FRAUD. 

.  Fraud  has  been  generally  classified  as 

(a)  Actual  fraud. 

(b)  Constructive  fraud. 

122.  Actual  fraud  arises  from  facts  and  circumstan- 

ces of  imposition,  and  may  be  described  as 
something  said,  done,  or  omitted  by  a  person 
with  the  design  of  perpetrating  what  he 
must  have  known  to  be  a  positive  fraud. 

123.  Constructive  fraud  may  be  described  as  an  act 

done  or  omitted,  not  with  an  actual  design 
to  perpetrate  positive  fraud  or  injury  up- 
on other  persons,  but  which,  nevertheless, 
amounts  to  positive  fraud,  or  is  construed 
as  a  fraud  by  the  court  because  of  its  detri- 
mental effect  upon  public  interests  and  pub- 
lic or  private  confidence.* 

124.  Frauds  may  again  be  divided  as  follows: 

(1)  Frauds  arising  from  facts  and  circumstances 

of  imposition. 

(2)  Frauds  apparent   from   the  intrinsic  nature 

and  subject  of  the  bargain  itself. 

(3)  Frauds  presumed  from  the  circumstances  and 

condition  of  the  contracting  parties. 

*  Lord  Hartwick,  quoted  in  Parkes,  Hist.  Oh.  p.  508;   Mortlock  v. 
Buller,  10  Ves.  292,  306. 

§§  121-124.     i  Smith,  Eq.  65;  Indermaur,  Lead.  Gas.  Eq.  158. 

*  Story,  Eq.  Jur.  §  258. 


288       GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Cll.  13 

(4)  Fraud  upon  third  persons  not  parties  to  the 

fraudulent  contract.8 
The  first  of  these  classes  constitutes  actual  fraud; 

the  other  three,  constructive  fraud. 

From  the  infinite  variety  of  cases  arising  in  equity  which 
involve  questions  of  fraud,  it  is  well-nigh  impossible  to  for- 
mulate a  classification  which  will  comprise  every  species  of 
fraud  which  is  properly  the  subject  of  the  equitable  jurisdic- 
tion. The  division  of  the  subject  into  two  classes — actual 
fraud  and  constructive  fraud — has,  in  many  modern  cases, 
been  severely  criticised ;  *  and  a  celebrated  text  writer  has 
emphatically  declared  "that  legal  or  constructive  fraud  may 
be  discarded  as  a  worse  than  useless  figment."  '  Notwith- 
standing this  adverse  authority,  it  does  not  seem  best  to  dis- 
regard a  classification  which  has  existed  for  so  long,  and 
has  been  so  often  used  by  text  writers  and  judges.  As  Mr. 
Pomeroy  has  observed:  "The  settled  terminology  of  the 
law  is  one  of  its  most  important  features."  •  To  refuse  to 
those  acts  which  have  always  been  termed  "constructive 
fraud"  classification  as  such  would  produce  confusion,  and 
would  not  be  productive  of  substantial  benefit. 

ACTUAL  FRAUD. 

125.  Actual  fraud  consists  of 

(a)  Misrepresentations, — suggestio  falsi,— or 

(b)  Fraudulent  concealment, — suppressio  veri, 

SAME— MISREPRESENTATION. 

126.  A  misrepresentation  constitutes  fraud  relieva- 

ble  in  equity  •when 
(a)  It  is  untrue. 

«  Earl  of  Chesterfield  v.  Janssen.  2  Ves.  Sr.  125;  Id.,  1  Atk.  801,  1 
White  &  T.  Lead.  Gas.  Eq.  (Text-Book  Series)  pt.  2,  p.  824. 

<  Weir  T.  Bell,  3  Excb.  Dlv.  243;  Deny  v.  Peek,  14  App.  Cas.  346; 
Angus  v.  Clifford  [1891]  2  Ch.  Div.  449;  Jollffe  v.  Baker,  11  Q.  B. 
Dlv.  271;  Smallcombe's  Case,  L.  R.  3  Eq.  769,  771. 

«  Pol.  Cont  p.  480. 

«  Pom.  Eq.  Jur.  $  874,  note. 


§   126)  ACTUAL   FRAUD.  289 

Ob)  The  party  making  it  knew,  or  should  have 
known,  it  to  be  untrue,  and  it  was  made  by 
him  to  induce  the  other  party  to  act  or  omit 
to  act. 

(c)  It  induced  the   other  party  to  act  or  omit  to 

act. 

(d)  It  is  of  a  material  fact. 

Courts  of  equity  are  most  frequently  asked  to  relieve 
against  fraud  where  there  has  been  a  misrepresentation,  or 
suggestio  falsi.  It  was  said  in  the  case  of  Smith  v.  Chad- 
wick  *  by  the  lord  chancellor :  "In  an  action  of  deceit  it  is 
the  duty  of  the  plaintiff  to  establish  two  things :  First,  ac- 
tual fraud,  which  is  to  be  judged  by  the  nature  and  character 
of  the  representations  made,  considered  with  reference  to 
the  object  with  which  they  were  made,  the  knowledge  or 
means  of  knowledge  of  the  persons  making  them,  and  the 
intention  which  the  law  justly  imputes  to  any  man  to  pro- 
duce those  consequences  which  are  the  natural  result  of  his 
acts;  and,  secondly,  he  must  establish  that  this  fraud  was 
an  inducing  cause  to  the  contract,  for  which  purpose  it  must 
be  material,  and  it  must  have  produced  in  his  mind  an  erro- 
neous belief  influencing  his  conduct." 

Representation  must  be  Untrue. 

The  most  essential  element  of  a  misrepresentation  is,  of 
course,  its  falsity.  This  element  is  not  susceptible  of  any 
exception  or  limitation,  and  no  citation  of  special  authorities 
is  necessary  to  sustain  the  proposition.  The  representation 
must  be  of  such  a  nature  as  to  carry  conviction  to  the  mind 
of  a  man  of  ordinary  intelligence.  If  the  misrepresentation 
is  uncertain,  indefinite,  or  vague,  it  cannot  be  made  the  basis 
of  a  demand  or  a  defense.*  It  must  be  a  positive  statement 
or  affirmation  of  a  fact,  and  not  a  mere  expression  of  opin- 

§  126.  i  20  Ch.  Div.  27;  Brett,  Lead.  Gas.  Mod.  Eq.  p.  204.  And 
see  Edgington  v.  Fitzmaurice,  29  Ch.  Div.  459;  Pasley  v.  Freeman,  3 
Term  R.  51;  Derry  v.  Peek,  14  App.  Gas.  372;  Graham  T.  Hollinger, 
46  Pa.  57;  Hubbell  v.  Meigs,  50  N.  T.  489. 

2  Smith  v.  Chadwick,  20  Ch.  Div.  27;    Dimmock  v.  Hallett,  2  Ch. 

App.  21,  30;   Arnold  v.  Bright,  41  Mich.  207,  2  N.  W.  16;   Wakeman 

v.  Dalley,  51  N.  Y.  27,  30,  10  Am.  Rep. 

EATON.EQ.— 19 


290  GROUNDS   OF   EQUITABLE    RELIEF — FRAUD.          (Ch.   13 

ion.'  It  generally  consists  of  words,  either  written  or 
spoken ;  but  this  is  not  indispensable,  for  it  may  be  effected 
by  acts  alone.4  A  misrepresentation  of  the  law  does  not 
amount  to  fraud,  since  all  persons  are  presumed  to  know  the 
law.' 

Expression  of  Opinion. 

When  the  misrepresentation  consists  of  a  mere  expres- 
sion of  opinion  of  the  party  making  it,  there  is  no  basis  for 
an  action  for  relief  at  law  or  in  equity.*  As  Chancellor  Kent 
says :  "Every  person  reposes  at  his  peril  in  the  opinion  of 
others,  when  he  has  an  opportunity  to  form  and  exercise  his 
own  judgment."  On  this  account  the  praise  by  a  vendor  of 
his  own  goods  for  the  purpose  of  enhancing  their  value  in 
the  mind  of  the  purchaser  cannot  be  deemed  fraudulent,  if  it 
is  kept  within  reasonable  limits.  But,  if  such  praise  as- 
sumes the  form  of  an  expression  of  a  specific  fact,  the  state- 
ment may  become  a  fraudulent  misrepresentation,  and  af- 
ford opportunity  for  the  intervention  of  equity.1  It  is  not 
possible  to  assert  a  fixed  rule  to  determine  whether  a  false 
representation  constitutes  a  matter  of  opinion  or  a  matter  of 
fact.  Each  case  must,  to  a  certain  extent,  be  adjudged  by 

«  Gifford  v.  Carvlll,  29  Cal.  589;  Printup  v.  Fort,  40  Ga.  276;  Bow- 
man v.  Carlthers,  40  Ind.  90;  Derrick  v.  Insurance  Co.,  74  111.  404; 
Pike  v.  Fay,  101  Mass.  134,  137;  Cooper  v.  Lovering.  10G  Mass.  77, 
79;  Hamnmtt  v.  Emerson,  27  Me.  308,  46  Am.  Dec.  598;  Perkins  v. 
Partridge,  30  N.  J.  Eq.  82;  Beardsley  v.  Duntley,  69  N.  Y.  577;  Damb- 
mann  v.  Scbultlng,  75  N.  Y.  55;  Verplanck  v.  Van  Buren,  76  N.  Y. 
247;  Babcock  v.  Case,  61  Pa.  427,  100  Am.  Dec.  654. 

•  Denny  v.  Hancock,  6  Ch.  App.  1;   Kilmer  v.  Smith,  77  N.  Y.  220. 
83  Am.  Rep.  413;    Bethell  v.  Bethell,  92  Ind.  318;    Harrington  v. 
Brewer,  56  Mich.  301,  22  N.  W.  813. 

•  Upton  v.  Tribilcock,  91  U.  S.  45,  23  L.  Ed.  203;   The  Belfast  v. 
Boon,  41  Ala.  50,  68;  People  v.  Board;  27  Cal.  <>;*>;  Drake  v.  Latham, 
BO  111.  270;    Reed  v.  Sidener,  32  Ind.  373;    Abbott  v.  Treat,  78  Me. 
121,  125,  3  Atl.  44;  Jaggar  v.  Winslow,  30  Minn.  2(13,  15  N.  W.  IM'J. 

•  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  8  Sup.  Ct.  881, 
81  L.  Ed.  678;    Holton  v.  Noble,  83  Cal.  7,  23  Pac.  58;   Nounnan  r. 
Land  Co.,  81  Cal.  1,  22  Pac.  515,  6  L.  R,  A.  219,  15  Am.  St.  Rep.  34; 
Conant  v.  Bank,  121  Ind.  323,  22  N.  E.  250;   Akin  v.  Kellogg,  119  N. 
Y.  441,  449,  23  N.  E.  1046;   Conlan  v.  Roeiner,  52  N.  J.  Law,  53,  18 
Atl.  858. 

i  Lehigh  Zinc  &  Iron  Co.  v.  Bamford,  150  U.  S.  673,  14  Sup.  Ct  219, 
87  L.  Ed.  1215;  Adams  v.  Soule,  33  Vt.  549;  Hunter  Y.  McLaughlin. 
43  Ind.  38;  French  v.  Griffin,  18  N.  J.  Eq.  279. 


§    126)  ACTUAL   FRAUD.  291 

its  own  circumstances.  The  court,  in  reaching  its  conclu- 
sion, will  take  into  consideration  the  situation  and  intelli- 
gence of  the  parties,  the  general  information  and  experience 
of  the  public  as  to  the  nature  and  use  of  the  property,  and 
the  habits  and  methods  of  those  dealing  with  it,  and  then 
determine,  upon  all  the  circumstances  of  the  case,  whether 
the  representations  ought  to  have  been  understood  as  af- 
firmations of  fact  or  as  matter  of  opinion  or  judgment.8 
Generally,  if  the  representation  is  expressed  by  the  party 
making  it  as  his  own  belief  and  opinion,  and  is  not  stated  as 
an  existing  fact,  he  cannot  be  held  to  account  therefor,  al- 
though such  representation  is  false.  But,  if  the  opinion  is 
given  by  the  party  as  an  expert,  and  is  concerning  a  matter 
of  which  the  party  to  whom  it  is  made  is  ignorant,  such  opin- 
ion may  become  material,  and  may  be  held  to  be  the  rep- 
resentation of  a  material  fact.'  The  most  common  instances 
of  expression  of  opinion  are  in  cases  where  statements  are 
made  in  respect  to  value  of  property  sold.  As  a  general 
rule,  statements  as  to  the  value  of  property,  though  false, 
are  not  grounds  for  affirmative  relief,  or  good  as  matters  of 
defense.10  An  assertion  as  to  the  value  of  an  article  does 
not  imply  knowledge,  but  must  be  understood  by  the  pur- 
chaser as  a  matter  of  judgment  or  opinion,  and  upon  a  sub- 
ject to  which  the  purchaser  is  generally  supposed  to  be  as 
competent  to  form  a  correct  judgment  as  the  vendor.11 
The  reason  for  this  rule  seems  to  rest  upon  the  fact  that,  the 

«  Reeves  v.  Corning  (C.  C.)  51  Fed.  774,  780. 

•  Pom.  Eq;  Jur.  §  878.    See  Hicks  v.  Stevens,  121  111.  186,  11  N.  E. 
241. 

10  Southern  Development  Co.  v-  Silva,  125  U.  S.  247,  8  Sup.  Ct. 
881,  31  L.  Ed.  678;   Gordon  v.  Butler,  105  U.  S.  553,  26  L.  Ed.  1166; 
Rendell  v.  Scott,  70  Cal.  514,  11  Pac.  779;  Williams  v.  McFadden,  23 
Fla.  143,  1  South.  618,  11  Am.  St.  Rep.  345;  Dillman  v.  Nadlehoffer, 
119  111.  567,  7  N.  E.  88;   Schramm  v.  O'Connor,  98  111.  539;   Lucas  v. 
Crippen,  76  Iowa,  507,  41  N.  W  205;   Dawson  v.  Graham,  48  Iowa, 
378;   Curry  v.  Keyser,  30  Ind.  214;   Shade  v.  Creviston,  93  Ind.  591; 
Holbrook  v.  Connor,  60  Me.  578,  11  Am.  Rep.  212;   Pike  v.  Fay,  101 
Mass.  134;  Homer  v.  Perkins,  124  Mass.  431,  27  Am.  Rep.  677;   Chat- 
ham Furnace  Co.  v.  Moffatt,  147  Mass.  403,  18  N.  E.  168;   Allison  v. 
Ward,  63  Mich.  128,  29  N.  W.  528;   Hubbell  v.  Meigs,  50  N.  Y.  480; 
Ellis  v.  Andrews,  56  N.  Y.  83,  15  Am.  Rep.  379;   Watts  v.  Cummins, 
69  Pa.  84;  Byrne  v.  Stewart,  124  Pa.  450,  17  Atl.  19. 

11  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  8  Sup.  Ct 
881,  31  L.  Ed.  678. 


292  GROUNDS    OF    EQUITABLE   RELIEF FRAUD.          (Ch.   13 

owner  being  interested  in  enhancing  the  value  of  the  article 
which  he  seeks  to  sell,  his  statement  as  to  its  value  should 
not  be  absolutely  relied  on.  Although  the  value  of  an  ar- 
ticle is  to  be  determined  by  the  purchaser  in  reliance  upon 
his  own  judgment  and  opinion,  yet,  as  to  any  extrinsic  fact 
affecting  the  value  or  quality  of  the  subject  of  the  contract, 
he  may  rely  upon  the  assurances  of  the  vendor;  and,  if  he 
does  so  rely,  and  those  assurances  are  fraudulently  mclae 
to  induce  him  to  make  the  contract,  he  may  maintain  an  ac- 
tion for  the  injury  sustained.12 

To  admit  of  relief  in  favor  of  the  purchaser,  there  must  be 
a  want  of  knowledge  and  a  want  of  means  to  acquire  knowl- 
edge on  his  part,  or  he  must  have  been  prevented  from  in- 
quiry or  obtaining  knowledge  by  some  artifice  of  the  ven- 
dor.18 A  deliberate  statement  of  value  by  a  person  having 
full  knowledge,  made  in  response  to  an  inquiry  for  the  guid- 
ance of  the  other  party,  and  acted  on  in  full  reliance  on  its 
good  faith  and  honesty,  has  been  held  to  be  a  representa- 
tion of  fact.14  And  any  misrepresentation  as  to  the  actual 
cost  of  the  property  sold  is  a  material  fact,  and  naturally 
calculated  to  mislead  the  purchaser.  It  not  only  tends  to 
enhance  the  value  of  such  property,  but  produces  an  effect 
beyond  the  force  of  a  mere  opinion.15  This  rule'  has  been 
limited  in  its  application  in  many  of  the  states,  and  only  held 
to  apply  where  a  fiduciary  relation  existed  between  the  par- 
ties.16 In  conclusion,  it  may  be  well  to  quote  the  following 
statement  as  to  the  distinction  between  a  misrepresentation 

12  Ellis  v.  Andrews,  56  N.  Y.  83;  Slmar  v.  Canaday,  53  N.  Y.  298. 
13  Am.  Rep.  523;  Chrysler  v.  Canaday,  90  N.  Y.  272,  43  Am.  Rep. 
166;  Schumaker  v.  Mather,  133  N.  Y.  590,  30  N.  E.  755;  Byrne  v. 
Stewart,  124  Pa.  450,  17  Atl.  19;  Suessenguth  v.  Brigenheimer,  40 
Wls.  370;  Dlllman  v.  Nadlehoffer,  119  111.  567,  7  N.  E.  88. 

i»  Chrysler  v.  Canaday,  90  N.  Y.  272,  43  Am.  Rep.  166;  Falrchlld 
T.  McMahon,  139  N.  Y.  290,  34  N.  E.  779. 

»«  Haygarth  v.  Wearing,  L.  R.  12  Eq.  320,  327,  328;  Jordan  v. 
Volkennlng,  72  N.  Y.  300,  306;  Morgan  v.  Dlnges,  23  Neb.  271,  36  N. 
W.  544;  Perkins  v.  Partridge,  30  N.  J.  Eq.  82. 

»•  Sandford  v.  Handy,  23  Wend.  (N.  Y.)  260;  Van  Epps  v.  Harri- 
son, 5  Hill  (N.  Y.)  63,  40  Am.  Rep.  314;  Hammond  v.  Pennock,  61  N. 
Y.  151;  Goldenbergh  v.  Hoffman,  69  N.  Y.  326;  Falrchild  v.  McMa- 
bon,  139  N.  Y.  290,  34  N.  E.  779. 

i«  Cooper  v.  Levering,  106  Mass.  77,  79;  Mooney  v.  Miller,  102 
Mass.  217,  220;  Tuck  v.  Downing,  76  111.  71;  Noetling  v.  Wright,  72 
11L  390;  Holbrook  T.  Connor,  60  Me.  578,  11  Am.  Rep.  212. 


§    126)  ACTUAL   FRAUD.  293 

of  fact  and  an  expression  of  opinion :  "If  the  representa- 
tion is  as  to  a  matter  not  equally  open  to  both  parties,  it 
may  be  said  to  be  a  statement  of  a  fact ;  but,  if  it  is  as  to  a 
matter  that  rests  entirely  on  the  judgment  of  the  person 
making  it,  and  the  means  of  information  upon  which  a  fair 
judgment  can  be  predicated  are  equally  open  to  both  par- 
ties, and  there  is  no  artifice  or  fraud  used  to  prevent  the  per- 
son to  be  affected  thereby  from  making  an  examination  and 
forming  a  judgment  for  himself,  the  representation  is  a  mere 
expression  of  opinion,  and  does  not  support  an  action  for 
fraud."  17 

Knowledge  that  Representation  is  Untrue. 

No  misrepresentation  can  be  deemed  fraudulent  unless  the 
party  making  it  believed  or  knew  it  to  be  untrue.  This  gen- 
eral proposition  is  subject  to  the  following  qualifications: 
A  person  may  be  charged  with  fraud  (i)  if  he  makes  an  un- 
true statement,  not  knowing  or  believing  it  to  be  true;  or 
(2)  if  he  recklessly  makes  an  untrue  statement,  the  falsity 
of  which  he  might  have  ascertained.18  At  law,  if  a  person 
makes  an  untrue  statement  without  knowledge  of  its  truth, 
he  cannot  be  adjudged  guilty  of  fraud  if  he  had  reason  to 
believe  it  to  be  true ;  but  in  equity  it  has  been  generally  held 
that  if,  at  the  time  he  made  the  statement,  he  had  no  knowl- 
edge of  its  truth,  he  will  be  chargeable  with  fraud,  and  the 
fact  that  he  believes  it  to  be  true  is  not  material.19  As  was 
said  in  a  recent  New  York  case:  "Where  a  party  repre- 

"2  Add.  Torts,  422,  §  1186  (Woods'  note). 

is  Marsh  v.  Falker,  40  N.  Y.  562;  Stone  v.  Denny,  4  Mete.  (Mass.) 
151;  Stimson  v.  Helps,  9  Colo.  35,  10  Pac.  290;  Hexter  v.  Bast,  125 
Pa.  52,  72,  17  Atl.  252,  11  Am.  St  Rep.  874;  Bullitt  v.  Farrar,  42 
Minn.  8,  43  N.  W.  566,  6  L.  R.  A.  149,  18  Am.  St.  Rep.  485;  McKln- 
non  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  6  L.  R.  A.  161,  17  Am.  St. 
Rep.  178;  Cooper  v.  Schlesinger,  111  U.  S.  148,  4  Sup.  Ct.  360,  28  L. 
Ed.  382;  Scholfleld  Gear  &  Pulley  Co.  v.  Scholfield,  71  Conn.  1,  40  AtL 
1046. 

i»  Rawlins  v.  Wlckham,  3  De  Gex  &  J.  304;  Hart  v.  Swalne,  7  Ch. 
Div.  42,  46;  McFerran  v.  Taylor,.  3  Cranch,  281,  2  L.  Ed.  436;  Smith 
v.  Richards,  13  Pet.  38,  10  L.  Ed.  42;  Thome  v.  Prentiss,  83  111.  99; 
Ruff  v.  Jarrett,  94  111.  475;  Hubbard  v.  Weare,  79  Iowa,  678,  44  N. 
W.  915;  Munroe  v.  Pritchett,  16  Ala.  785,  50  Am.  Dec.  203;  Beebe  v. 
Knapp,  28  Mich.  53;  Rowell  v.  Chase,  61  N.  H.  135;  Potter's  Appeal, 
56  Conn.  1,  12  Atl.  513,  7  Am.  St.  Rep.  272;  McMullin's  Adm'r  v. 
Sanders,  79  Va.  356,  362. 


294  GROUNDS    OF   EQUITABLE    RELIEF FRAUD.          (Ch.   13 

sents  a  material  fact  to  be  true  to  his  personal  knowledge, 
as  distinguished  from  belief  or  opinion,  when  he  does  not 
know  whether  it  is  true  or  not,  and  it  is  actually  untrue,  he 
is  guilty  of  falsehood,  even  if  he  believes  it  to  be  true ;  and, 
if  the  statement  is  thus  made  with  the  intention  that  it  shall 
be  acted  upon  by  another,  who  does  so  act  upon  it  to  his  in- 
jury, the  result  is  actionable  fraud."  20 

If  a  person  recklessly  make  a  statement,  the  truth  of  which 
may  be  ascertained,  with  no  knowledge  of  its  truth  or  falsity, 
there  will  be  imputed  to  him  a  knowledge  of  its  falsity,  and 
he  will  be  held  accountable  therefor.*1  The  reason  for  this 
rule  may  be  found  in  the  fact  that  he  who  makes  such  a 
statement  "takes  upon  himself  to  warrant  his  own  belief  of 
the  truth  of  that  which  he  asserts,  and  a  man  who  makes  a 
representation  as  to  which  he  neither  knows  nor  cares 
whether  it  is  true  or  not  can  have  no  real  belief  in  the  truth  of 
which  he  asserts,  and  is  justly  guilty  of  deception."  "  And  if 
a  statement  be  made  which  is  believed  by  the  person  making 
it  to  be  true,  but  which  is,  in  fact,  untrue,  and  it  was  the  duty 
of  such  person  to  know  the  truth,  which,  if  fulfilled,  would 
have  prevented  him  from  making  the  statement,  such  per- 
son is  chargeable  with  fraud.23  When  at  the  time  a  state- 
ment was  made  it  was  honestly  believed  to  be  true,  and 
there  was  no  intention  to  deceive  the  party  to  whom  it  was 
made,  or  to  secure  any  undue  advantage  of  him,  and  it  aft- 
erwards appeared  that  such  statement  was  incorrect,  if  the 
party  making  it  did  not  endeavor  to  correct  the  error,  and 
permitted  the  other  party  to  continue  in  the  belief  that  such 
statement  was  true,  his  fraud  dates  from  the  discovery  of  the 
error.24  But  if  a  party  make  a  statement  which  is  untrue, 

«•  Hadcock  v.  Osmer,  153  N.  Y.  604,  608,  47  N.  E.  923. 

*i  Atwood's  Adm'r  v.  Wright,  29  Ala.  346;  Alvarez  v.  Brannan,  7 
Cal.  503,  68  Am.  Dec.  274;  Borders  v.  Kattleman,  142  111.  96,  31  N. 
E.  19;  Gatllng  v.  Newell,  9  Ind.  572;  Bethell  v.  Bethell,  92  Ind.  318; 
Par-mice  v.  Adolph,  28  Ohio  St  10;  Braunschwelger  v.  Walts,  179 
Pa.  47,  36  Atl.  155;  McKlnnon  v.  Vollmar,  75  WIs.  82,  43  N.  W.  800, 
6  L.  R.  A.  161,  17  Am.  St.  Rep.  178. 

32  Evans  v.  Edmonds,  13  C.  B.  777;  Kountze  v.  Kennedy,  147  N. 
Y.  124,  41  N.  E.  414,  29  L.  R.  A.  360,  49  Am.  St.  Rep.  651. 

«  Pom.  Eq.  Jur.  5  888;  Burrowes  v.  Lock,  10  Ves.  470,  475;  Raw- 
ling  v.  Wlckham,  3  De  Gex  &  J.  304,  313,  316;  Babcock  v.  Case,  61 
Pa.  427,  430. 

3«  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  709;  Tralll  v.  Baring. 
4  De  Gex,  J.  &  S.  318,  329,  330. 


§    126)  ACTUAL    FRAUD.  29-3 

but  which  he  honestly  believes  to  be  true,  and  had  reason- 
able grounds  therefor,  he  cannot  be  charged  with  fraud.25 

Inducement  to  Act  or  Omit  to  Act. 

A  fraudulent  misrepresentation,  to  be  the  ground  of  equi- 
table relief,  must  be  relied  on  by  the  person  to  whom  it  is 
made,  and  must  be  an  immediate  inducement  to  him  to  act 
or  omit  to  act.  The  misrepresentation  must  be  the  asser- 
tion of  such  a  fact  that,  if  it  had  not  been  made,  the  person 
to  whom  it  was  made  would  not  have  entered  into  the  con- 
tract.26 It  must  be  the  very  ground  on  which  the  transac- 
tion took  place,  although  it  is  not  necessary  that  it  should 
have  been  the  sole  cause,  if  it  were  proximate,  immediate, 
and  material.27  Where  a  purchaser  made  a  false  statement 
as  to  his  financial  condition,  but  the  vendor  to  whom  it  was 
made,  before  completing  the  transaction,  made  further  in- 
quiries of  mercantile  agencies,  and  relied  on  this,  and  not 
upon  the  purchaser's  representations,  the  contract  of  sale 
cannot  be  rescinded  because  of  such  representations.28  But 

26  Cabot  v.  Christie,  42  Vt.  121,  126,  1  Am.  Rep.  313;  Wakeman  v. 
Dalley,  51  N.  Y.  27,  10  Am.  Rep.  551;  Hartford  Live-Stock  Ins.  Co. 
v.  Matthews,  102  Mass.  221;  Fisher  v.  Mellen,  103  Mass.  503;  Wheel- 
er v.  Randall,  48  111.  182. 

26  Pulsford  v.  Richards,  17  Beav.  87,  96.  And  see  Attwood  v. 
Small,  6  Clark  &  F.  523,  note,  where  Lord  Brougham  thus  states  the 
rule:  "Now,  my  lords,  what  inference  do  I  draw  from  these  cases? 
It  is  this:  That  general  fraudulent  conduct  signifies  nothing;  that 
general  dishonesty  of  purpose  signifies  nothing;  that  attempts  to 
overreach  go  for  nothing,  unless  all  this  dishonesty  of  purpose,  all 
this  fraud,  all  this  intention  and  design,  can  be  connected  with  the 
particular  transaction;  and  not  only  connected  with  the  particular 
transaction,  but  must  be  made  to  be  the  very  ground  upon  which 
this  transaction  took  place,  and  must  have  given  rise  to  this  con- 
tract." See,  also,  Southern  Development  Co.  v.  Silva,  125  U.  S.  247, 
8  Sup.  Ct.  8SX  31  L.  Ed.  G78;  Farrar  v.  Churchill,  135  U.  S.  609,  10 
Sup.  Ot  771,  34  L.  Ed.  246;  Farns  worth  v.  Duffner,  142  U.  S.  43,  12 
Sup.  Ct.  164,  35  L.  Ed.  931;  Baker  v.  Maxwell,  99  Ala.  558,  14  South. 
468;  Bennett  v.  Gibbons,  55  Conn.  450,  12  Atl.  99;  Lewis  v.  Mort- 
gage Co.,  94  Ga.  572,  21  S.  E.  224;  Dady  v.  Condit,  163  111.  511,  45 
N.  E.  224;  Windram  v.  French,  151  Mass.  547;  24  N.  E.  914,  8  L.  R. 
A.  750;  Burns  v.  Dockray,  156  Mass.  138,  30  N.  E.  551;  Mclntyre  v. 
Buell,  132  N.  Y.  192,  30  N.  E.  396;  Arnold  v.  Hosiery  Co.,  148  N.  Y. 
392,  42  N.  E.  980;  Ackman  v.  Jaster,  179  Pa.  463,  36  Atl.  324. 

"  Farrar  v.  Churchill,  135  U.  S.  609,  10  Sup.  Ct.  771,  34  L.  Ed.  246. 

as  Boyd  v.  Shiffer,  156  Pa.  100,  27  Atl.  60;  Lee  v.  Burnham,  82 
Wis.  209,  52  N.  W.  255;  Singer  Y.  Schilling,  74  Wis.  369,  43  N.  W. 


296  GROUNDS   OP   EQUITABLE    BELIEF—  FRAUD.          (Ch.   13 

where  false  statements  have  been  willfully  made  by  a  person 
to  a  commercial  agency  for  the  purpose  of  obtaining  a  finan- 
cial standing  or  credit  to  which  he  is  not  entitled,  he  is  lia- 
ble to  the  same  extent  as  if  he  had  made  a  direct  false  rep- 
resentation." 

In  no  case  can  a  contract  be  set  aside  or  rescinded  unless 
it  can  be  proved  that  the  party  to  whom  the  false  represen- 
tations were  made  relied  and  acted  thereon.80  Not  only 
must  the  party  to  whom  a  false  representation  has  been  made 
have  relied  and  acted  thereon,  but  he  must  have  been  justi- 
fied in  such  reliance.  For  instance,  if  a  person  has  knowl- 
edge that  a  representation  made  to  him  is  false,  and  he  nev- 
ertheless acts  thereon,  he  cannot  be  said  to  have  relied  on 
such  representation,  and  cannot  treat  it  as  a  fraud.81  But 

101.  And,  on  the  other  hand,  false  statements  made  to  a  mercantile 
agency  by  a  vendor  must  have  been  communicated  to  and  relied 
upon  by  the  vendee  in  order  to  give  the  latter  a  right  to  relief.  Tin- 
die  v.  Birkett,  57  App.  Dlv.  450,  67  N.  Y.  Supp.  1017. 

2»  The  law  on  the  subject  of  communications  to  mercantile  agen- 
cies is  very  well  reviewed  in  the  case  of  Eaton,  Oole  &  Burnham  Co. 
v.  A  very,  83  N.  Y.  31,  38  Am.  Rep.  389,  in  which  it  is  held  that  it  is 
not  essential  that  a  representation  should  be  addressed  directly  to 
the  party  who  seeks  a  remedy  for  having  been  deceived  and  de- 
frauded by  means  thereof,  and  that  this  principle  is  peculiarly  ap- 
plicable to  the  case  of  statements  made  to  mercantile  agencies,  of 
whose  business  the  courts  may  take  Judicial  notice.  A  person  fur- 
nishing Information  to  such  an  agency  in  relation  to  his  own  cir- 
cumstances, means,  and  pecuniary  responsibility  can  have  no  other 
motive  in  so  doing  than  to  enable  the  agency  to  communicate  such 
Information  to  persons  who  may  be  interested  in  obtaining  it  for 
their  guidance  in  giving  credit  to  the  party;  and,  if  a  merchant  fur- 
nishes to  such  an  agency  a  willfully  false  statement  of  his  circum- 
stances or  pecuniary  ability,  with  intent  to  obtain  a  standing  and 
credit  to  which  he  knows  he  is  not  Justly  entitled,  and  thus  to  de- 
fraud whoever  may  resort  to  such  agency,  and  in  reliance  upon  the 
false  information  there  lodged  extend  credit  to  him,  bis  liability  is 
the  same  as  if  he  had  made  a  direct  false  representation.  It  seems 
to  be  clear  that,  in  order  to  hold  the  defendant  liable  under  such  cir- 
cumstances, the  communication  must  have  been  willfully  false.  See 
Macullar  v.  McKinley,  99  N.  Y.  353,  2  N.  E.  9.  And  see  opinion  on 
this  subject  by  Referee  Hawley  In  the  case  of  In  re  Russell,  5  Am. 
Bankr.  R.  608. 

«o  Dady  v.  Condit,  163  111.  511,  45  N.  E.  224,  citing  Douglass  v. 
Sutler,  58  111.  342;  Tuck  v.  Downing,  76  111.  71;  Steam  v.  Clifford, 
62  Vt  92,  18  Atl.  1045. 

»i  Dyer  v.  Hargrave,  10  Ves.  505;  Bennett  v.  Gibbons,  55  Conn. 
450,  12  Atl.  99;  Newman  v.  Sylvester,  42  Ind.  106;  Proctor  r.  Me- 


§    126)  ACTUAL   FRAUD.  297 

where,  from  the  circumstances  of  the  case,  the  representa- 
tion is  such  that  the  person  to  whom  it  is  made  had  a  right 
to  rely  thereon,  he  is  not  bound  to  satisfy  himself  as  to  its 
truth  by  making  a  further  inquiry,  if  he  have  no  knowledge 
of  his  own,  or  there  are  no  facts  which  would  naturally 
arouse  his  suspicion  as  to  the  truth  of  such  representation. 
The  person  making  such  representation  cannot  complain  if 
the  other  took  him  at  his  word,  and  relied  thereon;  and  if 
he  asserts  that  the  other  party  had  knowledge  of  the  falsity 
of  the  representation,  and  was  not  misled  thereby,  it  is  for 
him  to  remove  the  presumption  that  his  false  statement  in- 
duced the  action  of  the  other  party  by  showing  clearly  that 
he  possessed  such  knowledge.82  But  if  a  false  representa- 
tion is  so  palpably  false  that  a  reasonable  man  would  not 
have  relied  thereon,  the  person  to  whom  it  is  made  cannot 
justify  his  reliance,  and  he  must  take  the  consequences  of  his 
own  negligence.83  And  if,  after  a  representation  of  fact,  the 
person  to  whom  it  is  made  investigates  to  ascertain  the  truth 
of  such  representation,  and  acts  upon  his  own  judgment, 
based  on  such  investigation,  he  cannot  treat  such  represen- 
tation as  fraudulent ;  **  as,  when  a  purchaser  investigates 

Cord,  60  Iowa,  153,  14  N.  W.  208;  Crehore  v.  Crehore,  97  Mass.  330, 
93  Am.  Dec.  98;  Cloutman  v.  Bailey,  62  N.  H.  44;  Davis  v.  Haw- 
kins, 163  Pa.  228,  29  Atl.  746. 

sz  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  691,  708;  Dyer  v.  Har- 
grave,  10  Ves.  505;  Boynton  v.  Hazelboom,  14  Allen  (Mass.)  107,  92 
Am.  Dec.  738;  Swimm  v.  Bush,  23  Mich.  99;  Hicks  v.  Stevens,  121 
111.  180,  11  N.  E.  241;  Drake  v.  Latham,  50  111.  270;  Dillman  v.  Na- 
dlehoffer,  119  111.  567,  7  N.  B.  88;  In  re  Holmes'  Appeal,  77  Pa.  50; 
Watts  v.  Cummins,  59  Pa.  84;  Wilkin  v.  Barnard,  61  N.  Y.  628. 

as  Trower  v.  Newcome,  3  Mer.  704;  Irving  v.  Thomas,  18  Me.  418, 
424;  Savage  v.  Jackson,  19  Ga.  305;  Slaughter  v.  Gerson,  13  Wall. 
379,  20  L.  Ed.  ,627. 

34  In  Clapham  v.  Shillito,  7  Beav.  149,  Lord  Langdale  says:  "If 
the  party  to  whom  the  representations  were  made  himself  resorted 
to  the  proper  means  of  verification  before  he  entered  into  the  con- 
tract, it  may  appear  that  he  relied  upon  the  result  of  his  own  inves- 
tigation and  inquiry,  and  not  upon  the  representations  made  to  him 
by  the  other  party;  or,  if  the  means  of  investigation  and  verifica- 
tion be  at  hand,  and  the  attention  of  the  party  receiving  the  repre- 
sentations be  drawn  to  them,  the  circumstances  of  the  case  may  be 
such  as  to  make  it  incumbent  on  a  court  of  justice  to  impute  to  him 
a  knowledge  of  the  result,  which,  upon  due  inquiry,  he  ought  to  have 
obtained,  and  thus  the  notion  of  reliance  on  the  representations 
made  to  him  may  be  excluded."  And  see  Farrar  v.  Churchill,  135  U. 


298       GROUNDS  OP  EQUITABLE  EELIEF FRAUD.    (Ch.  13 

for  himself,  and  nothing  is  done  to  prevent  his  investigation 
from  being  as  full  as  he  chooses,  he  cannot  say  that  he  re- 
lied on  the  vendor's  representations.86  And  if  a  person  have 
means  at  his  disposal  for  acquiring  information,  which,  if 
employed,  would  lead  to  an  ascertainment  of  the  falsity  or 
statement  made  to  him,  he  will  be  presumed  to  have  known 
that  such  statement  was  false.  As  the  rule  has  been  stated : 
"If  the  facts  represented  are  not  matters  peculiarly  within 
the  party's  knowledge,  and  the  other  party  has  the  means 
available  to  him  of  knowing,  by  the  exercise  of  ordinary  in- 
telligence, the  truth  or  the  real  quality  of  the  subject  of  the 
representation,  he  must  make  use  of  those  means,  or  he  will 
not  be  heard  to  complain  that  he  was  induced  to  enter  into 
the  transaction  by  misrepresentation."  *• 

But  the  presumption  is  always  against  the  party  making 
a  positive  representation  of  fact,  for  the  general  rule  is  that 
the  party  to  whom  it  is  made  had  a  right  to  rely  on  its  truth- 
fulness. It  follows,  therefore,  that,  if  a  person  seeks  to  avoid 
the  effects  of  his  misrepresentations  by  alleging  that  the  per- 
son to  whom  they  were  made  did  not  rely  or  should  not  have 
relied  thereon,  it  is  incumbent  on  him  to  show  that  the  person 
to  whom  they  were  made  either  had  knowledge  of  the  facts, 
or  had  made  inquiry  in  respect  thereto,  and  had  ascertained 
the  truth,  or  had  availed  himself  to  some  extent  of  a  means 
or  opportunity  of  obtaining  knowledge  of  such  facts.87 

No  obligation  rests  on  a  person  to  investigate  or  verify 
representations  of  fact  made  to  him,  to  the  truth  of  which 
the  other  party  to  the  contract,  with  full  means  of  knowledge, 

S.  G09,  10  Sup.  Ct  771,  34  L.  Ed.  246;  Farnsworth  v.  Duffner,  142  U. 
S.  43,  12  Sup.  Ct  164,  35  L.  Ed.  931;  Slaughter  v.  Gerson,  13  Wall. 
379,  383,  20  L.  Ed.  627;  Moses  v.  Katzenberger,  84  Ala.  95,  4  South. 
237;  Crocker  v.  Manley,  164  111.  282,  45  N.  E.  577;  Bowker  v.  Belong. 
141  Mass.  315,  4  N.  E.  834;  Arnold  v.  Hosiery  Co.,  148  N.  Y.  392,  42 
N.  E.  980. 

«5  Farrar  v.  Churchill,  135  U.  S.  609,  10  Sup.  Ct.  771,  34  L.  Ed.  246; 
Slaughter  v.  Gerson,  13  Wall.  379,  20  L.  Ed.  627. 

36  schumaker  v.  Mather,  133  N.  Y.  590,  30  N.  E.  755.  And  see, 
also,  Colton  v.  Stanford,  82  Cal.  352,  23  Pac.  16;  Herron  v.  Herron,  71 
Iowa,  428,  32  N.  W.  407;  Fish  v.  Cleland,  33  111.  238;  Rockafellow 
v.  Baker,  41  Pa.  319. 

«T  Price  v.  Macaulay,  2  De  Gex,  M.  &  G.  339,  346;  Redgrave  v. 
Hurd,  20  Ch.  Dlv.  1;  Hicks  v.  Stevens,  121  111.  186,  11  N.  E.  241; 
Wenzel  v.  Shulz,  78  Cal.  221,  20  Pac.  404. 


§  126)  ACTUAL  FRAUD.  299 

has  deliberately  pledged  his  faith."  In  a  court  of  equity  no 
man  can  complain  that  another  has  too  implicitly  relied  on 
the  truth  of  what  he  himself  has  stated.38 

Misrepresentation  must  be  Material. 

The  misrepresentation  must  be  of  such  a  nature  as  to  have 
injuriously  affected  the  rights  and  interests  of  the  person  to 
whom  it  was  made.  Such  person  must  have  suffered  some 
financial  loss  or  injury  as  a  natural  result  of  such  misrep- 
resentation.40 Such  misrepresentation,  to  be  material,  must 
be  one  necessarily  influencing  and  inducing  the  transaction, 
and  affecting  and  going  to  its  very  essence  and  substance.41 
Misrepresentations  extending  only  to  some  unimportant  de- 
tail, or  to  something  collateral  to  the  contract,  are  not  ma- 
terial.42 

s*  Kramer  v.  Williamson,  135  Ind.  655,  35  N.  E.  388;  Mead  v. 
Bunn,  32  N.  Y.  275;  Erickson  v.  Fisher,  51  Minn.  300,  53  N.  W.  638; 
Morehead  v.  Eades,  3  Bush  (Ky.)  121. 

8»  Redgrave  v.  Hurd,  20  Ch.  Div.  1.  In  Sutton  v.  Morgan,  158 
Pa.  204,  27  Atl.  894,  it  was  said  in  reference  to  a  failure  of  purchas- 
ers of  land  to  investigate  respecting  misrepresentations  made  by 
vendors:  "They  fell  easily  into  the  trap,  which  was  set  with  some 
skill  and  some  effrontery  for  them;  but  their  neglect  or  want  of 
prudence  cannot  Justify  the  falsehood  or  fraud  of  those  who  practice 
upon  their  credulity.  The  doctrine  of  contributory  negligence  can- 
not be  invoked  by  defendants  to  save  them  from  liability  for  mis- 
leading their  victims." 

40  Clark  v.  White,  12  Pet.  178,  9  L.  Ed.  1046;   Reay  v.  Butler,  69 
Oal.  580,  11  Pac.  463;  Marriner  v.  Dennlson,  78  Cal.  202,  20  Pac.  386; 
Rogers  v.  Higgins,  57  111.  244;   Bartlett  v.  Elaine,  83  111.  25,  25  Am. 
Rep.  346;  McShane  v.  Hazlehurst,  50  Md.  107;  Wells  v.  Waterhouse, 
22  Me.  131;  Wuesthoff  v.  Seymour,  22  N.  J.  Eq.  66;   Bennett  v.  Jud- 
son,  21  N.  Y.  238;   Taylor  v.  Guest,  58  N.  Y.  262;   Marr's  Appeal,  78 
Pa.  66;  Wells  v.  Millett,  23  Wis.  64. 

41  Kerr,  Fraud  &  M.  p.  74;  Colton  v.  Stanford,  82  Cal.  351,  23  Pac. 
16;  Powell  v.  Adams,  98  Mo.  598,  12  S.  W.  295;   Smith  v.  Kay,  7  H; 
L.  Cas.  750,  755. 

43  Perclval  v.  Harger,  40  Iowa,  286;  Winston  v.  Gwathmey,  8  B. 
Mon.  (Ky.)  19. 


300  GROUNDS   OF   EQUITABLE   RELIEF FRAUD.          (Ch.   IS 


SAME— FRAUDULENT  CONCEALMENT. 

127.  Concealment  of,  or  failure  to  disclose,  a  fact 
does  not  constitute  a  fraud,  unless  such  fact 
is  material,  and  is  one  which  the  person  con- 
cealing it  is  bound  in  conscience  and  duty  to 
disclose.1 

Fraudulent  concealment,  as  here  referred  to,  does  not  re- 
late to  that  "active  concealment"  where  a  person  uses  some 
contrivance  or  artifice  to  hide  a  defect  in  something  offered 
for  sale.  Such  concealment  constitutes  actual  fraud  in  the 
nature  of  a  misrepresentation.  As  we  have  seen,  a  misrep- 
resentation need  not  be  made  by  language,  spoken  or  writ- 
ten, but  conduct  calculated  to  convey  a  false  impression  is 
sufficient.*  As  a  general  rule,  both  at  law  and  in  equity,  the 
mere  failure  of  a  party  to  a  contract  to  disclose  a  material 
fact  is  not  fraud.8  It  has  never  been  asserted  in  any  legal 
tribunal  that  a  vendor  is  bound  to  disclose  all  facts,  which, 
if  known  by  the  purchaser,  would  prevent  a  purchase. 
When  parties  deal  at  arm's  length,  and  there  is  no  confiden- 
tial or  fiduciary  relation  between  them,  either  of  them  may 
remain  silent,  and  avail  himself  of  his  superior  knowledge  as 
to  facts  and  circumstances  equally  open  to  the  observation 
of  both,  or  equally  within  the  reach  of  their  ordinary  dili- 
gence, and  is  under  no  obligation,  either  at  law  or  in  equity, 
to  draw  the  attention  of  the  other  to  circumstances  affect- 
ing the  value  of  the  property  in  question,  though  he  may 
know  him  to  be  ignorant  of  them.4  As  an  instance  it  has 
been  held  that  a  person  about  to  purchase  an  oil  lease  was 
not  bound  to  disclose  to  his  vendor  the  fact  that  oil  had 

f  127.     i  Snell,  Eq.  p.  553. 

»  Lovell  v.  Hicks,  2  Younge  &  C.  Exch.  46;  Denny  r.  Hancock,  6 
Ch.  App.  1. 

»  Keates  v.  Earl  of  Cadogan,  10  C.  B.  501;  Juzan  v.  Toulmln,49 
Ala.  062,  44  Am.  Dec.  448;  Dambmann  v.  Schultlng,  75  N.  Y.  55,  62; 
People's  Bank  of  City  of  New  York  v.  Bogart,  81  N.  Y.  101,  37  Am. 
Rep.  481;  Wood  r.  Amory,  106  N.  Y.  278,  11  N.  E.  636. 

«  Cleaveland  v.  Richardson,  132  U.  S.  318,  329,  10  Sup.  Ct.  100,  33 
L.  Ed.  884;  Dambmann  r.  Schultlng,  75  N.  Y.  55;  Graham  v.  Meyer, 
99  N.  Y.  611,  1  N.  E.  143;  Pennybacker  v.  Laidley,  33  W.  Va,  624,  11 
8.  E.  39;  Gonlnan  v.  Stephenson,  24  WIs.  75. 


§   127)  ACTUAL   FRAUD.  301 

been  produced  on  a  neighboring  leasehold,  which  he  owned, 
and  that  the  failure  to  disclose  such  fact  was  not  a  fraud.6 
And  a  purchaser  of  lands  is  not  required  to  communicate  his 
knowledge  of  something  which  gives  it  an  exceptional  value, 
such  as  a  mineral  deposit  under  it ;  •  nor  need  the  vendor 
communicate  his  information  respecting  defects  rendering  it 
less  valuable  than  the  purchaser  supposes  it  to  be.7  But  if, 
in  addition  to  the  party's  silence,  something  be  done  to  con- 
ceal the  truth,  or  if  the  party  discloses  a  part  of  the  truth 
and  keeps  silent  as  to  a  material  fact,  there  may  be  a  fraud- 
ulent concealment,  or  even  a  fraudulent  misrepresentation.8 

Duty  to  Disclose. 

Concealment  is  fraudulent  when,  owing  to  the  relationship 
existing  between  the  parties,  the  subject-matter  of  the  trans- 
action, or  other  circumstances,  it  is  the  duty  of  the  party 
having  knowledge  of  material  facts  to  disclose  them.  Si- 
lence when  there  is  a  legal  or  equitable  duty  to  speak  is  a 
fraud.9  If,  with  intent  to  deceive,  either  party  to  a  contract 
of  sale  conceals  or  suppresses  a  material  fact,  which  he  is  in 
good  faith  bound  to  disclose,  this  is  evidence  of  and  equiv- 
alent to  a  false  representation,  because  the  concealment  or 
suppression  is,  in  effect,  a  representation  that  what  is  dis- 
closed is  the  whole  truth.10 

The  chief  difficulty  in  these  cases  seems  to  be  to  deter- 
mine when  a  party  may  be  charged  with  a  duty  to  speak. 

•  Neill  v.  Shamburg,  158  Pa.  263,  27  Atl.  992. 

•  Fox  v.  Mackreth,  2  Cox,  320,  2  Brown,  Ch.  400,  420;   Harris  v. 
Tyson,  24  Pa.  347,  64  Am.  Dec.  661;  Williams  v.  Spurr,  24  Mich.  335; 
Neill  v.  Shamburg,  158  Pa.  263,  27  Atl.  992. 

•  Haywood  v.  Cope,  25  Beav.  140;  Laidlaw  v.  Organ,  2  Wheat.  178, 
4  L.  Ed.  214;  People's  Bank  of  City  of  New  York  v.  Bogart,  81  N.  Y. 
101.    A  sale  of  land  at  an  extravagant  price  will  not  be  rescinded 
at  the  suit  of  the  purchaser  who  invested  his  money  on  the  faith  of 
his  belief  in  the  power  of  a  third  person  to  locate  mineral  deposits, 
when  the  vendor  did  nothing  to  create  or  strengthen  the  false  opin- 
ion on  which  the  purchaser  acted.     Law  v.  Grant,  37  Wis.  548. 

«  Neckley  v.  Thomas,  22  Barb.  (N.  Y.)  252;  Newell  v.  Randall,  82 
Minn.  171,  19  N.  W.  972,  50  Am.  Rep.  562.  And  see  Turner  v.  Har- 
vey, Jac.  169,  178;  Davles  v.  Cooper,  5  Mylne  &  O.  270. 

•  Paddock  v.  Strobridge,  29  Vt  470,  477;    Kerr,  Fraud  &  M.  98; 
Tyler  v.  Savage,  143  TJ.  S.  79,  12  Sup.  Ct.  340.  346,  36  L.  Ed.  82;  Hor- 
ton  v.  Handvil,  41  N.  J.  Eq.  57,  3  Atl.  72. 

10  Stewart  v.  Cattle-Ranch  Co.,  128  U.  S.  383,  9  Sup.  Ct  101.  32  L. 
Ed.  439. 


302        GROUNDS  OF  EQUITABLE  RELIEF — FRAUD.    (Ch.  13 

Generally,  where  a  relationship  of  trust  and  confidence  ex- 
ists between  the  parties,  and  one  of  the  parties,  by  the  na- 
ture of  such  relationship,  either  actually  or  legally  reposes 
confidence  in  the  other,  the  party  in  whom  the  confidence  is 
reposed  is  legally  and  equitably  bound  to  disclose  to  the  oth- 
er the  knowledge  which  he  may  possess  as  to  material  facts, 
and  his  intentional  silence  as  to  such  facts  is  fraud.  As  ex- 
amples of  the  application  of  this  rule,  a  trustee  dealing  with 
his  cestui  que  trust  must  disclose  all  material  facts,11  and 
the  same  may  be  said  where  the  relationship  is  that  of  prin- 
cipal and  agent,12  attorney  and  client,18  and  of  partners.1* 
A  special  fiduciary  relationship  may  exist  between  stran- 
gers, although  the  transaction  may  not  be  fiduciary  in  its 
nature ;  as  where  one  of  the  parties  expressly  reposes  trust 
or  confidence  in  the  other.  In  such  cases,  if  the  party  in 
whom  the  trust  is  reposed  does  not  disclose  material  facts, 
he  is  guilty  of  fraud.  To  hold  otherwise  would  be  to  permit 
a  party  to  take  advantage  of  confidences  reposed  in  him.15 
This  rule  has  been  applied  where  a  promoter  of  a  corpora- 
tion induces  a  person  to  subscribe  to  the  capital  stock  of  a 
corporation,  in  which  case  the  subscriber  may  be  relieved  if 
the  promoter  failed  to  disclose  facts  which  would  probably 
have  prevented  him  from  subscribing.18  It  is  often  difficult 
to  determine  when  a  special  fiduciary  relationship  exists. 
Each  case  depends  on  its  own  particular  circumstances.  It 
may  exist  because  of  the  nature  of  the  dealings  of  the  parties 
and  their  positions  towards  each  other ;  as  where  there  was 
a  pre-existing  fiduciary  relationship,  or  where  one  party  is  in 

11  Dalbiac  v.  Dalbiac,  16  Vea.   124;  Maddeford  v.  Austwick,  1 
Sim.  89. 

12  Mason  v.  Bauruan,  62  111.  76;   Porter  v.  Woodruff,  36  X.  J.  Eq. 
174;   Green  v.  Peeso,  92  Iowa,  261,  60  N.  W.  531;   Bell  v.  Bell,  3  W; 
Va,  183. 

13  Miller  v.  Whelan,  158  111.  544,  42  N.  E.  59;   Todd  y.  Wilson,  9 
Bear.  486;    Howell  T.  Baker,  5  Johns.  Ch.  (N.  Y.)  118;   Thomas  v. 
Turner's  Adm'r,  87  Va.  1,  12  S.  E.  149,  668. 

i«  Warren  v.  Schainwald,  62  Oal.  56;  Hopkins  v.  Watt,  13  111.  298; 
Pomeroy  v.  Benton,  57  Mo.  531;  Bennett  v.  Mi-Mi  11  in.  179  Pa.  146, 
86  Atl.  188;  Wells  v.  McGeoch,  71  Wis.  196,  35  N.  W.  769. 

IB  Bennett  v.  McMlllin,  179  Pa,  146,  36  Atl.  188;  Enmons  v.  Moore, 
85  111.  3O4;  Virginia  Land  Co.  v.  Haupt,  90  Va.  533,  19  S.  E.  168,  44 
Am.  St.  Rep.  939. 

i«  Virginia  Land  Co.  T.  Haupt,  90  Va,  533,  19  S.  E.  168,  44  Am.  St 
Rep.  939. 


§    127)  ACTUAL    FRAUD.  303 

possession  of  knowledge  of  a  material  fact,  of  which,  from 
the  circumstances  of  the  case,  the  other  party  must  be  igno- 
rant, and  could  not  acquire  knowledge.  It  has  been  stated 
as  a  general  rule  that  "each  party  is  bound  in  every  case  to 
communicate  to  the  other  his  knowledge  of  material  facts, 
provided  he  knows  the  other  to  be  ignorant  of  them,  and 
they  be  not  open  and  naked,  or  equally  within  the  reach  of 
his  observation."  1T  And  where  a  party  knows  that  his  si- 
lence in  respect  to  a  material  fact  will  cause  a  misapprehen- 
sion thereof  by  the  other  party,  it  is  his  duty  to  correct  such 
misapprehension.  And  if  facts  arise,  after  a  statement  which 
was  true  when  made,  which  render  such  statement  false,  and 
the  party  to  whom  such  statement  was  made  has  not  acted 
thereon,  it  is  the  duty  of  the  person  making  such  statement 
to  disclose  such  facts  to  the  other  party,  if  such  facts  are 
within  his  knowledge,  and  are  such  as  would  not  naturally 
come  to  the  knowledge  of  such  other  party.18 

As  a  general  rule,  a  buyer  on  credit  is  not  bound  to  de- 
clare as  to  his  financial  condition,  and,  in  the  absence  of 
evasive  and  partial  answers,  or  of  conduct  amounting  to  mis- 
representation, his  silence  as  to  his  financial  difficulties,  or 
even  insolvency,  will  not  constitute  a  fraudulent  conceal- 
ment.19 But  where  he  has  once  declared  his  financial  con- 
dition to  a  commercial  agency,  or  to  a  person  with  whom  he 
transacts  business,  and  circumstances  thereafter  arise  which 
would  tend  to  impair  his  ability  to  pay,  it  is  his  duty  to  dis- 
close such  circumstances  to  the  persons  with  whom  he  is 
dealing,  or  to  such  commercial  agency.  His  silence  as  to 
such  circumstances,  even  though  no  questions  are  asked,  is 

»T  2  Kent,  Comm.  482.  And  see  Bryant's  Ex'r  v.  Boothe,  30  Ala. 
311,  68  Am.  Dec.  117;  Mitchell  v.  McDougall,  62  111.  498;  Downing 
v.  Dearborn,  77  Me.  457,  1  Atl.  407;  Minor  v.  Sharon,  112  Mass.  477, 
17  Am.  Rep.  '122,— where  a  landlord  leased  a  dwelling  house  which 
was  infected  with  smallpox  without  disclosing  such  fact  to  the  les- 
sor. And  see,  to  same  effect,  Cesar  v.  Karutz,  60  N.  Y.  229,  19  Am. 
Rep.  164.  See,  also,  Grigsby  v.  Stapleton,  94  Mo.  423,  7  S.  W.  421; 
Hanson  v.  Edgerly,  29  N.  H.  343;  Daly  v.  Wise,  132  N.  Y.  306,  30  N. 
E.  837,  16  L.  R.  A.  236;  Dinsmore  v.  Tidball,  34  Ohio  St.  418;  For- 
ster's  Ex'rs  v.  Gillam,  13  Pa.  340;  Dowling  v.  Lawrence,  58  Wis. 
282,  16  N.  W.  552. 

isTraill  v.  Baring,  4  De  Gex,  J.  &  S.  318;  Reynell  v.  Sprye,  1 
De  Gex,  M.  &  G.  660;  Janes  v.  Trustees,  17  Ga.  515;  Loewer  y.  Har- 
ris, 6  C.  C.  A.  394,  57  Fed.  368. 

«  Pom.  Eq.  Jur.  §  906. 


304  GROUNDS    OF   EQUITABLE    RELIEF FRAUD.         (Ch.   13 

a  fraudulent  concealment.1*  Independent  of  the  relation- 
ship of  the  parties  or  the  attendant  circumstances,  the  ven- 
dor of  real  property  is  legally  and  equitably  bound  to  dis- 
close defects  in  the  title,  which  are  known  to  him  and  un- 
known to  the  vendee.21  This  is  also  true  as  to  facts  indi- 
cating a  deficiency  in  the  quantity  of  land  sold,  and  affecting 
the  quality  and  value  thereof,  which  are  peculiarly  within  the 
vendor's  knowledge,  but  are  not  ascertainable  by  the  ven- 
dee.22 This  rule  has  no  application  where  the  facts  are 
readily  ascertainable,  and  the  vendor  does  or  says  nothing 
to  prevent  an  investigation.2' 

REMEDIES  OP  DEFRAUDED  PARTY. 

128.  Fraud  does  not  render  a  transaction  void,  but 
only  voidable.  If  the  defrauded  party 
elects  to  rescind,  he  must  act  promptly  aft- 
er discovering  the  fraud;  and  he  cannot  re- 
pudiate the  transaction  in  part,  and  adopt  it 
as  far  as  it  is  beneficial.1 

«o  Mooney  v.  Davis,  75  Mich.  188,  42  N.  W.  802,  13  Am.  St  Rep. 
425;  Nichols  v.  Pinner,  18  N.  Y.  295;  Boaz  v.  Manufacturing  Co. 
(Tex.  Civ.  App.)  40  S.  W.  866.  It  seems  reasonably  clear  that,  where 
a  man  has  once  made  a  declaration  to  a  mercantile  agency,  it  is  to 
be  regarded  as  a  continuous  statement  within  reasonable  limits, 
•which  Is,  perhaps,  the  better  way  of  stating  the  principle.  But  in 
Macullar  v.  McKlnley,  99  N.  Y.  353,  2  N.  E.  9,  the  vendee  made  a 
statement  In  February,  1881,  In  response  to  an  application  from  r. 
mercantile  agency.  He  was  applied  to  in  June  for  a  statement, 
which  he  refused.  In  the  following  August,  September,  and  Octo- 
ber he  purchased  goods  on  credit,  and  in  November  made  a  general 
assignment,  and  It  was  held  that  the  plaintiffs,  vendors,  were  prop- 
erly nonsuited,  and  that  the  evidence  failed  to  show  any  Intention 
on  the  part  of  defendant  to  mislead  or  deceive  plaintiffs;  and  that, 
In  view  of  the  circumstances  of  the  case,  It  could  not  be  said  that 
the  misrepresentations  of  February  had  any  legitimate  connection 
with  the  credits  extended  in  August,  September,  and  October. 

«  Barnard  v.  Duncan,  38  Mo.  170,  90  Am.  Dec.  416;  Forster'a 
Ex'rs  v.  Gillam,  13  Pa.  340;  Bryant's  Ex'r  T.  Boothe,  30  Ala.  311,  68 
Am.  Dec.  117. 

«  Bedford  v.  Hlckman,  5  Call  (Va.)  236,  2  Am.  Dec.  590;  Mitchell 
T.  McDougall,  62  111.  498. 

«»  Marrlner  v.  Dennison,  78  Cal.  202,  20  Pac.  386;  McCall  T.  Da- 
Tls,  56  Pa.  431. 

§  128.  i  Oakes  v.  Turquand,  L.  R.  2  H.  L.  345,  346;  Lindsley  v. 
Ferguson,  49  N.  Y.  623;  Negley  v.  Lindsay,  67  Pa.  217. 


§    128)  REMEDIES    OF   DEFRAUDED   PARTY.  305 

Since  fraud  renders  a  transaction  voidable,  and  not  void, 
there  are  several  remedies  available  to  the  defrauded  party: 
(i)  He  may  affirm  the  transaction,  and  sue  at  law  to  recover 
the  damages  sustained  by  reason  of  the  fraud.8  (2)  He  may 
absolutely  rescind  the  transaction,  and  sue  at  law  to  recover 
the  property  he  parted  with.  This  action  proceeds  on  the 
theory  that  the  transaction  has  already  been  rescinded,  and 
therefore,  before  the  plaintiff  can  maintain  it,  he  must  have 
returned  or  tendered  all  that  he  received  by  virtue  thereof.8 
(3)  He  may  sue  in  equity  for  a  rescission.  This  remedy  does 
not  proceed  on  the  theory  that  the  plaintiff  has  already  re- 
scinded, but  it  is  for  a  rescission,  and  therefore  it  is  suffi- 
cient for  the  plaintiff  to  restore  to  the  defendant  what  he  has 
received,  and  the  rights  of  the  parties  can  be  fully  regulated 
and  protected  by  the  judgment  to  be  rendered.4  In  all  cases 
the  plaintiff  must  act  with  reasonable  diligence  after  becom- 
ing aware  of  the  fraud.6  But  the  question  as  to  what  is  rea- 
sonable diligence  depends  on  the  facts  in  each  particular 
case.0  A  failure  to  institute  judicial  proceedings  for  relief 
within  a  reasonable  time  after  the  discovery  of  the  fraud  may 
be  deemed  an  acquiescence,  and  defeat  the  remedy,  although 
the  delay  is  for  a  less  time  than  that  prescribed  by  the  stat- 
ute of  limitations.7  But  it  is  necessary  to  bear  in  mind  that 
the  right  of  the  party  defrauded  is  not  affected  by  the  lapse 
of  time,  or,  generally  speaking,  by  anything  done  or  omitted 
to  be  done,  so  long  as  he  remains,  without  any  fault  of  his 
own,  in  ignorance  of  the  fraud  that  has  been  committed.8 

»  Krumm  v.  Beach,  96  N.  Y.  398,  406;  Urquhart  v.  MacPherson,  3 
App.  Cas.  831. 

a  Gould  v.  Bank,  86  N.  Y.  75;  Vail  v.  Reynolds,  118  N.  Y.  297.  302. 
23  N.  E.  301;  Thayer  v.  Turner,  8  Mete.  (Mass.)  550. 

*  Gould  v.  Bank,  86  N.  Y.  75;  Thomas  v.  Beals,  154  Mass.  51,  27 
N.  E.  1004;  Nelson  v.  Carlson,  54  Minn.  94,  55  N.  W.  821. 

6  Campau  v.  Van  Dyke,  15  Mich.  371;  Brown  v.  Brown,  142  111. 
409,  32  N.  E.  500;  Richardson  v.  Walton  (C.  C.)  49  Fed.  888;  Weaver 
v.  Carpenter,  42  Iowa,  345;  Akerly  v.  Vilas,  21  Wis.  88. 

«  Kilbourn  v.  Sunderland,  130  TJ.  S.  505,  518,  9  Sup.  Ct  594,  32  L. 
Ed.  1005. 

t  Banner  v.  Moulton,  138  U.  S.  486,  11  Sup.  Ct.  408,  34  L.  Ed.  1032; 
Jforris  v.  Haggin,  136  U.  S.  386,  10  Sup.  Ct.  942,  34  L.  Ed.  424;  Strong 

«  Rolfe  v.  Gregory,  4  De  Gex,  J.  &  S.  576;    Vane  v.  Vane,  8  Ch. 
App.  383;  Phalen  v.  Clark,  19  Conn.  421,  50  Am.  Dec.  253;  Stocks  v. 
Van  Leonard,  8  Ga,  511;    Martin  Y.  Martin,  35  Ala.  560;    Cock  v. 
Van  Etten,  12  Minn.  522  (Gil.  431). 
EATON.EQ.— 20 


306        GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

Another  result  of  the  merely  voidable  nature  of  transactions 
tainted  with  fraud  is  that  the  complainant  will  be  given  no 
relief  unless  he  conies  with  clean  hands.  If  he  has  partici- 
pated in  the  scheme  to  defraud,  and  is  in  pari  delicto  with 
the  defendant,  equity  will  not  relieve  in  his  favor,  but  will 
leave  the  parties  where  it  finds  them. 

This  equitable  relief  against  fraud  is,  however,  very  ex- 
tensive in  its  scope.  It  reaches  not  only  all  those  who  were 
engaged  in  the  fraud,  but  all  who  directly  and  knowingly  en- 
joyed the  benefits  thereof,  and  all  who  derive  title  from  them 
knowingly,  or  with  notice.  "A  court  of  equity  will  wrest 
property  fraudulently  acquired,  not  only  from  the  perpetra- 
tor of  the  fraud,  but  from  his  children,  and  his  children's 
children,  or,  as  elsewhere  said,  from  any  persons  amongst 
whom  he  may  have  parceled  out  the  fruits  of  his  fraud."  * 
But  there  is  one  limitation  to  the  application  of  this  rule. 
If  the  relief  cannot  be  granted  without  injuriously  affecting 
the  rights  of  third  parties  who  are  innocent  of  any  wrong,  a 
remedy  against  the  fraud  may  not  be  afforded.  This  is  so 
where  the  property  acquired  by  the  fraud  has  been  trans- 
ferred to  a  bona  fide  purchaser  for  a  valuable  consideration, 
without  notice.  The  only  relief  to  be  had  in  such  a  case  is 
against  the  perpetrator  of  the  fraud.10 

129.  CONSTRUCTIVE  FRAUD. 

In  treating  this  branch  of  the  subject  of  fraud,  we  will  con- 
sider the  last  three  forms  of  fraud  recognized  in  the  classi- 
fication of  Lord  Hardwicke  in  the  case  of  Earl  of  Chester- 
field v.  Janssen ;  *  i.  e. :  (2)  Fraud  apparent  from  the  in- 
trinsic nature  and  subject  of  the  bargain  itself;  (3)  frauds 
presumed  from  the  circumstances  and  conditions  of  the  con- 
tracting parties ;  (4)  fraud  upon  third  persons  not  parties  to 
the  fraudulent  contract.  The  effect  of  constructive  fraud  is 

T.  Strong,  102  N.  Y.  73,  5  N.  E.  799;  Oalhoun  v.  Millard,  121  N.  T. 
77,  24  N.  E.  27,  8  L.  R.  A.  248;  Allen  v.  Allen,  47  Mich.  74,  10  N.  W. 
113;  Haldane  v.  Sweet,  55  Mich.  196,  20  N.  W.  902;  Burdett  y.  May, 
100  Mo.  18,  12  S.  W.  1056. 

9  Vane  v.  Vane,  8  Ch.  App.  383,  397,  per  James,  L.  J. 

10  Stephens  v.  Board,  79  N.  T.  183,  35  Am.  Rep.  511;    Dunklin 
T.  Wilson,  64  Ala.  162;   Oakes  v.  Turqunnd,  L.  R.  2  H.  L.  325. 

I  129.     i  2  Ves.  Sr.  125;   Id.,  1  Atk.  301.    And  see  ante,  p.  287. 


§    129J)  CONSTRUCTIVE   FRAUD.  307 

the  same  as  of  actual  fraud.  It  has,  indeed,  often  been 
doubted  whether  the  use  of  the  term  "constructive  fraud"  is 
in  accordance  with  accurate  and  correct  nomenclature. 
There  may  be  constructive  fraud,  so  called,  when  there  is  no 
untruth  or  falsity  in  the  words  or  acts  of  the  party  charged 
therewith;  and  it  has  been  said  by  a  leading  English  equity 
judge  "that  to  treat  such  a  transaction  as  a  fraud  is,  in  my 
opinion,  to  confound  moral  principles,  and  to  introduce  an 
element  of  great  confusion  into  the  doctrine  of  courts  of 
equity,  the  fundamental  principle  of  which,  as  regards  fraud, 
is,  as  it  appears  to  me,  that  nothing  can  be  called  fraud,  and 
nothing  can  be  treated  as  fraud,  except  an  act  which  in- 
volves grave  moral  guilt."  Granting  that  the  term  "con- 
structive fraud"  is  inappropriate,  it  does  not  seem  expedient 
to  drop  the  use  of  it  at  this  time ;  especially  since  its  known 
meaning,  and  the  distinction  between  it  and  actual  fraud, 
have  become  so  firmly  fixed  in  legal  literature. 

SAME— APPARENT  FROM  NATURE  OP  BARGAIN. 

129  i.  Contracts   and  transactions    may   be  deemed 
constructively  fraudulent 

(a)  Because  of  an   inadequacy    of  consideration 

which  is  so  gross  that  it  shocks  the  con- 
science, or  is  coupled  with  other  inequitable 
circumstances. 

(b)  Because  contrary  to  statute,  public  policy,  or 

good  morals. 

Inadequacy  of  Consideration. 

Inadequacy  of  consideration  generally  occurs  in  contracts 
of  sale,  or  in  transactions  analogous  thereto,  and  may  be 
either  in  the  price  paid  or  to  be  paid  or  in  the  value  of  the 
subject-matter;  or,  in  other  words,  it  exists  both  when  the 
price  is  too  small  and  when  it  is  too  great.  It  is  a  well- 
settled  principle  in  law  and  equity  that  mere  inadequacy  of 
consideration  does  not  form  a  distinct  ground  of  equitable 
relief.1  It  is  not  enough  to  induce  a  court  of  equity  to  in- 

S  129%.  i  Parmelee  v.  Cameron,  41  N.  Y.  392;  Butler  v.  Haskell, 
4  Desaus.  (S.  C.)  651;  Martinez  v.  Moll  (C.  C.)  46  Fed.  724;  Harris 
v.  Tyson,  24  Pa.  347,  360;  Collier  v.  Browii,  1  Cox,  42S. 


308       GROUNDS  OF  EQUITABLE  BELIEF FRAUD.    (Ch.  13 

terfere  that  a  bargain  is  hard  and  unreasonable.  Every 
man  is  presumed  to  be  capable  of  managing  his  own  affairs, 
and  whether  his  bargains  are  wise  or  unwise  is  not,  ordi- 
narily, a  legitimate  subject  of  inquiry  in  a  court  of  either 
legal  or  equitable  jurisdiction.2  And  this  equally  applies  in 
cases  of  executed  or  executory  contracts,  whether  the  relief 
sought  is  cancellation  or  performance. 

But  there  are  cases  where  there  is  no  positive  evidence  of 
fraud,  and  yet  the  inequality  of  the  bargain  is  so  gross  that 
the  mind  cannot  resist  the  inference  that  it  was  improperly 
obtained.  In  such  cases  a  court  of  equity  avoids  the  bar- 
gain, not  merely  on  account  of  its  gross  inequality,  but  be- 
.cause  such  inequality  furnishes  the  most  vehement  presump- 
tion of  fraud.8  But  there  must  be  "an  inequality  so  strong, 
gross,  and  manifest  that  it  must  be  impossible  to  state  it  to 
a  man  of  common  sense  without  producing  an  exclamation 
at  the  inequality  of  it."  * 

It  is  not  often  that  equity  will  interpose  where  there  is 
nothing  but  mere  inadequacy  of  consideration.  But,  even  in 
such  cases,  if  the  inadequacy  is  coupled  with  circumstances 
of  an  inequitable  nature, — such  as  concealment,  oppression, 
or  undue  influence  on  the  one  hand,  or  old  age,  mental  in- 
firmity, ignorance,  or  pecuniary  embarrassment  on  the  oth- 
er,— a  presumption  of  fraud  is  raised,  which  warrants  equita- 
ble relief,  unless  the  party  whom  the  contract  benefits  suc- 
ceeds in  showing  perfect  good  faith  in  the  transaction." 

*  Dunn  v.  Chambers,  4  Barb.  (N.  Y.)  376;  Holmes  v.  Fresh,  9  Mo. 
201;  Maddox  v.  Simmons,  31  Ga,  512;  Lee  v.  Kirby,  104  Mass.  420, 
428;   Ready  v.  Noakes,  29  N.  J.  Eq.  497;  Cummiug's  Appeal,  67  Pa. 
404. 

*  Osgood  v.  Franklin,  2  Johns.  Ch.  (N.  Y.)  1,  7  Am.  Dec.  513;  Sey- 
mour v.  Delancy,  3  Cow.  (N.  Y.)  452,  15  Am.  Dec.  270;    Duun  v. 
Chambers,  4  Barb.  (N.  Y.)  376;   Parmelee  v.  Cameron,  41  N.  Y.  392; 
Lee  v.  Kirby,  104  Mass.  420;    Berry  v.  Lovi,  107  111.  612;   Adalr  v. 
Cummin,  48  Mich.  375,  12  N.  W.  495. 

*  Lord  Thurlow  In  Gwynne  v.  Heaton,  1  Brown,  Ch.  8;  Matthews 
v.  Crockett's  Adm'rs,  82  Va.  31)4;  Harnblin  v.  Bishop  (C.  C.)  41  Fed. 
74;   Pennybacker  v.  Laldley,  33  W.  Va,  624,  11  S.  E.  39;   Phillips  v. 
Pullen,  45  N.  J.  Eq.  5,  16  Atl.  9;  Id.,  45  N.  J.  Eq.  830,  18  Atl.  849. 

o  Burke  v.  Taylor,  94  Ala.  530,  10  South.  129;  Tracey  v.  Sacket,  1 
Ohio  St  54,  59  Am.  Dec.  610;  Blackwilder  v.  Loveless,  21  Ala.  371; 
Fish  v.  Leser,  69  111.  394;  Davis  v.  Dock  Co.,  129  111.  180,  21  N.  E. 
830;  Smith  v.  Huntoon,  134  111.  24,  24  N.  E.  971;  Dlckson  v.  Kern- 
plosky,  96  Mo.  252,  9  &  W.  618. 


§    129J;  CONSTRUCTIVE    FRAUD.  309 

Catching  Bargains. 

There  is  a  peculiar  class  of  transactions,  known  as  "catch- 
ing bargains,"  with  heirs,  reversioners,  or  expectants  which 
frequently  arise  in  England,  but  rarely  with  us,  and  in  which 
fraud  is  commonly  presumed  from  inadequacy  of  consider- 
ation.6 Such  transactions  may  be  set  aside  on  the  ground 
of  inadequacy  alone,  without  proof  of  any  other  ingredients 
of  fraud,  such  as  misrepresentation,  undue  influence,  etc.7 
The  fact  that  the  expectant  was  of  mature  age,  and  well  un- 
derstood the  nature  and  extent  of  the  transaction,  is  im- 
material.8 From  the  fact  of  a  person's  selling  such  an  in- 
terest, the  court  presumes  that  he  was  under  pecuniary  pres- 
sure, and  he  is  not  called  upon  to  prove  that  such  was  the 
fact.  The  onus  is  on  the  purchaser  to  show  that  the  trans- 
action was  just  and  reasonable.9  Post  obit  bonds,  or  bonds 
conditioned  for  the  payment  of  a  sum  of  money  on  the  death 
of  a  person  from  whom  the  obligor  has  expectations,  are,  on 
similar  principles,  regarded  with  suspicion  in  equity,  and,  if 
of  an  unconscionable  character,  will  be  permitted  to  stand 
only  as  security  for  the  actual  sum  lent  thereon,  with  proper 
interest.10  These  cases  are  no  longer  of  practical  use,  be- 
cause of  the  statute  of  31  &  32  Viet.  c.  4,  which  provides  that 
"no  purchase  made  bona  fide,  and  without  fraud  or  unfair 
dealing,  of  any  reversionary  interest  in  real  or  personal  es- 
tate, shall  hereafter  be  opened  or  set  aside  merely  on  the 
ground  of  undervalue."  But  it  is  of  interest  to  note  the  rule 
existing  before  the  statute,  especially  since  the  influence  of 
such  rule  can  be  observed  in  many  of  our  American  cases.11 


•  Peacock  v.  Evans,  16  Ves.  512. 

T  Curwyn  v.  Milner,  3  P.  Wms.  293;  Earl  of  Aylesford  v.  Morris,. 
8  Cli.  App.  484.  . 

s  Earl  of  Portmore  v.  Taylor,  4  Sim.  182;  Bromley  v.  Smith,  26 
Beav.  G44. 

•  Gowland  v.  De  Faria,  17  Ves.  20;  Lord  v.  Jeffkins,  35  Beav.  7,  9. 
K>  Curling  v.  Marquis  Townshend,  19  Ves.  628;    Benyon  v.  Fitch, 

35  Beav.  570. 

11  Jenkins  v.  Pye,  12  Pet.  241,  9  L.  Ed.  1070;  Larrabee  v.  Larra- 
bee,  34  Me.  477;  Lowry  v.  Spear,  7  Bush  (Ky.)  451;  Boynton  v.  Hub- 
bard,  7  Mass.  112;  Trull  v.  Eastman,  3  Mete.  (Mass.)  121,  37  Am. 
Dec.  126;  Butler  v.  Duncan,  47  Mich.  94,  10  N.  W.  123,  41  Am.  Rep. 
711;  Poor  v.  Hazleton,  15  N.  H.  564;  Mastin  v.  Marlow,  65  N.  C.  695; 
Varick  v.  Edwards,  1  Hoff.  Ch.  (N.  Y.)  382;  Needles  v.  Needles,  1 
Ohio  St.  432,  70  Am.  Dec.  85;  Power's  Appeal,  63  Pa.  443. 


810       GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

Contracts  Illegal  Because  Contrary  to  Statute. 

Many  contracts  which  were  formerly  illegal  at  the  com- 
mon law  because  opposed  to  public  policy  or  good  morals 
have  since  become  the  subject  of  legislative  enactment,  and 
are  now  expressly  declared  by  statute  to  be  illegal.  Among 
the  more  common  contracts  which  are  in  violation  of  stat- 
ute, and  therefore  void,  are  usurious  and  gaming  contracts. 
In  England  the  laws  prohibiting  usury  have  been  repealed, 
and  the  present  tendency  of  legislative  authority  in  the 
American  states  seems  to  be  in  the  same  direction.  But  it 
has  been  held  that  the  doctrines  of  equity  as  to  the  relief  of 
expectant  heirs  from  unconscionable  bargains  have  not  been 
affected  by  the  repeal  of  the  usury  laws,  or  by  the  altera- 
tion of  the  laws  as  to  sales  of  reversionary  interests.12 
Some  of  the  American  states  have  followed  England,  and 
repealed  the  usury  laws ;  but  in  many  of  the  states  usurious 
contracts  are  still  void  under  the  statute.  In  other  states 
the  usurious  excess  only  is  void,  and  the  contract  remains 
enforceable.  It  has  been  generally  held  that  courts  of  equi- 
ty will  follow  the  statutory  rule,  and,  where  a  party  claiming 
tinder  a  usurious  security  resorts  to  such  courts  to  render 
his  claim  available,  and  the  defendant  sets  up  and  establishes 
the  charge  of  usury,  the  courts  will  decide  according  to  the 
letter  of  the  statute,  and  deny  all  assistance,  and  set  aside 
«very  security  and  instrument  infected  with  usury.1' 

Modern  English  and  American  statutes  have  declared 
gaming  and  waging  contracts,  and  all  instruments  and  agree- 
ments connected  therewith,  to  be  void.  All  courts,  both  of 
law  and  equity,  will  refuse  to  lend  their  aid  to  enforce  or  to 
relieve  against  a  gambling  contract.14  Contracts  for  the 
delivery  of  stock,  generally  known  as  "time  contracts,"  which 
are  in  their  nature  gambling  contracts,  cannot  be  enforced.15 

»»  Earl  of  Aylesford  v.  Morris,  8  Ch.  App.  484. 

i»  Fanning  v.  Dunham,  5  Johns.  Ch.  (N.  Y.)  122,  142,  0  Am.  Dec. 
283. 

i«  Dade's  Adm'r  v.  Madison,  5  Leigh  (Va.)  401;  Wilkinson  v. 
Tousley,  10  Minn.  290  (Gil.  2G3),  10  Am.  Rep.  139;  Embrey  v.  Jeml- 
•on,  131  U.  8.  336,  9  Sup.  Ct  776,  33  L.  Ed.  172;  Cole  v.  Milmlne,  88 
III  349;  Alvord  v.  Smith,  63  Ind.  68;  Harris  v.  White,  81  N.  Y.  532; 
People  v.  Fallen,  152  N.  Y.  12,  46  N.  E.  296;  Irwln  v.  Wllliar,  110  U. 
8.  499,  508,  510,  4  Sup.  Ct  160,  28  L.  Ed.  225. 

"Story  v.  Salomon,  71  N.  Y.  420;  Bigelow  v.  Benedict,  70  N.  Y. 
202,  206,  26  Am.  Rep.  573;  Fareira  v.  Gabell,  89  Pa.  89;  Griffiths  v. 


§    129J)  CONSTRUCTIVE    FRAUD.  311 

Mr.  Benjamin,  in  his  work  on  Sales,  has  observed:  "It 
makes  no  difference  that  a  bet  or  wager  is  made  to  assume 
the  form  of  a  contract.  Gambling  is  none  the  less  such  be- 
cause it  is  carried  on  in  the  form  or  guise  of  legitimate 
trade." 

Contracts  and  Transactions  against  Public  Policy. 

Among  the  contracts  and  transactions  which  are  deemed 
constructively  fraudulent  because  opposed  to  public  policy 
are  those  interfering  with  the  rights  of  marriage,  waiving  an 
equity  of  redemption,  in  restraint  of  trade,  and  for  the  pro- 
curement of  office.  Justly  and  wisely  considering  the  sa- 
credness  of  the  marriage  relation,  equity  has,  from  a  very 
early  period,  interposed  to  relieve  against,  and  has  declared 
null  and  void,  contracts  or  agreements  which  interfere  in  any 
way  with  the  absolute  freedom  of  marriage.  As  an  illustra- 
tion, marriage  brokerage  contracts,  whereby  an  agreement 
is  made  to  negotiate  a  marriage,  are  entirely  void.  They 
cannot  be  confirmed,  and  money  paid  thereunder  may  be  re- 
covered.1* The  same  may  be  said  in  respect  to  agreements 
between  persons  not  to  marry  at  all,  or  not  to  marry  any 
person  except  the  promisee.17 

Gifts  and  testamentary  dispositions  in  restraint  of  mar- 
riage are  subject  to  the  application  of  similar  rules  and  prin- 
ciples. It  is  somewhat  difficult  to  lay  down  fixed  rules  rel- 
ative to  such  cases,  because  of  the  great  mass  of  law  upon 
the  subject,  and  the  confusion  and  uncertainty  which  exists 
in  respect  thereto.  Two  rules  or  principles  may  be  stated 
which  seem  to  be  reasonably  well  settled:  (i)  If  a  gift  is 
made  under  a  condition  that  the  donee  shall  refrain  from 
marriage,  such  condition  is  void,  and  the  donee  will  take  free 
therefrom.  This  is  subject  to  the  limitation  that  a  condition 

Sears,  112  Pa.  523,  4  Atl.  492;  Lowry  v.  Dillman,  59  Wis.  197,  18  N. 
W.  4.  But  there  is  no  presumption  of  illegal  intent  in  a  contract 
for  future  delivery  of  stock.  Bigelow  v.  Benedict,  supra. 

i«  Cole  v.  Gibson,  1  Ves.  Sr.  503;  Boynton  v.  Hubbard,  7  Mass* 
112;  Morrison  v.  Rogers,  115  Cal.  252,  46  Pac.  1072;  Johnson's 
Adin'r  v.  Hunt,  81  Ky.  321;  Antcliff  v.  June,  81  Mich.  477,  45  N.  W. 
1019,  10  L.  R.  A.  621,  21  Am.  St.  Rep.  533;  Duval  v.  Wellman,  124 
N.  Y.  156,  26  N.  B.  343;  Place  v.  Conklin,  34  App.  Div.  191,  54  N.  Y. 
Supp.  532. 

IT  Lowe  v.  Peers,  4  Burrows,  2225;  Baker  v.  White,  2  Vern.  215; 
Conrad  v.  Williams,  6  Hill  (N.  Y.)  444;  White  v.  Union,  76  Ala.  251. 
62  Am.  Rep.  325. 


312        GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

precedent  annexed  to  a  devise  of  land,  although  in  absolute 
restraint  of  marriage,  will,  if  broken,  operate  to  prevent  the 
taking  effect  of  the  devise.18  (2)  Where  the  condition  an- 
nexed to  the  gift  is  only  in  partial  restraint  of  marriage,  as 
where  the  donee  should  not  marry  before  a  certain  age,  or 
a  certain  person,  or  a  person  of  a  certain  religious  denomi- 
nation, or  without  the  consent  of  trustees,  it  is  valid  and  en- 
forceable.19 In  this  latter  case,  in  case  of  a  breach  of  the 
condition,  if  the  gift  is  of  real  property,  the  condition  is  valid 
whether  there  is  a  gift  over  or  not ; 20  but,  if  the  gift  is  of 
personalty,  and  there  is  no  gift  over,  the  restraint  may  be 
inoperative  to  defeat  the  estate.81 

Contracts  in  general  restraint  of  trade,  have,  from  an  ear- 
ly time,  been  deemed  void  as  against  public  policy.  If  such 
restraint  is  partial,  reasonable,  and  founded  on  a  valuable 
consideration,  it  may  be  sustained.28  Contracts  for  the  sale 

i«  Scott  v.  Tyler,  2  Brown,  Ch.  431,  2  White  &  T.  Lead.  Cas.  (4th 
Am.  Ed.)  429;  Morley  v.  Rennoldson,  2  Hare,  570;  Waters  v.  Taze- 
well,  9  Md.  291. 

i»  Hoopes  v.  Dundas,  10  Pa.  75;  In  re  Hotz's  Estate,  38  Pa.  422, 
80  Am.  Dec.  490;  Collier  v.  Slaughter's  Adm'r,  20  Ala,  203;  Gray- 
don's  Ex'rs  T.  Graydon,  23  N.  J.  Eq.  229. 

«o  Clarke  Y.  Parker,  19  Ves.  1,  13;  Lloyd  v.  Branton,  3  Mer.  108, 
117,  119. 

«  Harvey  v.  Aston,  1  Atk.  361,  375,  377;  Parsons  v.  Winslow,  6 
Mass.  1G9,  4  Am.  Dec.  107. 

«  See  Year  Book,  2  Hen.  V.  Term  Pasch.  pi.  26;  Davies  v.  Davies, 
88  Ch.  Div.  499;  Mitchell  v.  Reynolds,  1  Smith,  Lead.  Cas.  (9th  Ed.) 
705.  And  see  the  following  recent  cases:  Harding  v.  Glucose  Co., 
182  111.  551,  55  N.  E.  577;  Buck  v.  Coward,  122  Mich.  530,  81  N.  W. 
828;  Rakestraw  v.  Lanier,  104  Ga.  188,  30  S.  E.  735;  Ru  Ton  v.  Ev- 
eritt,  35  App.  Div.  412,  54  N.  Y.  Supp.  896;  Leonard  v.  Poole,  114  N. 
Y.  371,  21  N.  E.  707.  Formerly  this  rule  was  applied  with  great 
strictness,  and  anything  which  tended  to  a  general  restraint  of 
trade,  and  was  unlimited  either  in  respect  to  time  or  place,  was 
considered  Invalid.  The  modern  tendency  is  to  hold  that,  where 
"the  restraint  Is  such  only  as  to  afford  a  fair  protection  to  the  in- 
terests of  the  party  in  favor  of  whom  it  Is  given,  and  not  so  large 
as  to  interfere  with  the  interests  of  the  public,  it  will  be  upheld." 
Tindal,  C.  J.,  in  Horner  v.  Graves,  7  Blng.  735.  See,  also,  Diamond 
Match  Co.  T.  Roeber,  108  N.  Y.  473,  13  N.  E.  419,  60  Am.  Rep.  464; 
Webster  v.  Buss,  61  N.  H.  40.  60  Am.  Rep.  317;  Nordenfelt  v.  Am- 
munition Co.  [1894]  App.  Cas.  535,  63  Law  J.  Ch.  908,  71  Law  T.  489, 
6  Eng.  Rul.  Cas.  413;  Gamewell  Fire-Alarm  Tel.  Co.  v.  Crane,  160 
Mass.  50,  35  N.  E.  98,  22  L.  R.  A.  673,  and  note,  39  Am.  St  Rep.  458. 


§    129J)  CONSTRUCTIVE    FRAUD.  313 

of  a  business  and  good  will  are  often  made  with  a  clause  re- 
stricting the  vendor  from  carrying  on  a  similar  business 
within  a  certain  distance  of  the  old  place  for  a  specified 
length  of  time.  Courts  of  equity  will  enforce  such  contracts 
if  they  are  reasonable  as  to  limit  of  territory  and  length  of 
time.23  But  equity  will  not  enforce  a  contract  in  restraint 
of  trade,  although  it  is  good  at  law,  if  its  terms  are  hard  and 
complex.24  There  are  many  other  contracts,  either  in  re- 
straint of  trade,  or  regulating  in  some  manner  business 
methods  and  relations,  which  are  generally  held  invalid  as 
against  public  policy.  It  is  not  possible  to  enter  into  an  elab- 
orate discussion  of  such  contracts  in  a  work  of  this  extent  on 
the  subject  of  equity.  Mr.  Clark  has  treated  the  subject  at 
length  in  his  work  on  Contracts,  to  which  the  reader  is  re- 
ferred." 

There  are  also  many  contracts  and  agreements  which  in- 
juriously affect  the  public,  and  are  constructively  fraudulent, 
and  therefore  invalid.  Among  these  may  be  mentioned 
agreements  for  the  sale  of  or  traffic  in  the  emoluments  of  a 
public  office,  and  agreements  to  influence  legislation  by  per- 
sonal solicitation  of  the  members  of  legislative  bodies. 
"Any  contract,"  says  Greenhood,29  "contemplating  the  use 
of  secret  influence  with  public  officers,  or  calculated  to  in- 
duce the  use  of  such  influence,  is  void,  especially  when  one 
of  the  parties  is  a  public  officer,  though  he  be  but  a  repre- 

But  under  the  federal  statute  against  monopolies  It  does  not  make 
any  difference  whether  the  restraint  of  trade  is  reasonable  or  un- 
reasonable. U.  S.  v.  Association,  166  U.  S.  290,  17  Sup.  Ct.  540,  41 
L.  Ed.  1007;  U.  S.  v.  Association,  171  U.  S.  505,  19  Sup  Ct.  25,  43  L. 
Ed.  259. 

zs  Robbins  v.  Webb,  68  Ala.  393;  Goodman  v.  Henderson,  58  Ga. 
567;  Lanzit  v.  Manufacturing  Co.,  184  111.  326,  56  N.  E.  393;  Hedge 
v.  Lowe,  47  Iowa,  137;  Smalley  v.  Greene,  52  Iowa,  241,  3  N.  W.  78, 
85  Am.  St.  Rep.  267;  Dean  v.  Emerson,  102  Mass.  480;  Timmerman 
v.  Dever,  52  Mich.  34,  17  N.  W.  230,  50  Am.  Rep.  240;  Watrous  T. 
Allen,  57  Mich.  362,  24  N.  W.  104,  58  Am.  Rep.  363;  Thompson  v. 
Andrus,  73  Mich.  551,  41  N.  W.  683;  Bingham  v.  Brands,  119  Mich. 
255,  77  N.  W.  940;  Trenton  Potteries  Co.  v.  Oliphant,  56  N.  J.  Eq. 
680,  39  Atl.  923. 

2*  Kimberley  y.  Jennings,  6  Sim.  340;  Mineral  Water  Bottle  Ex- 
change &  Trade  Soc.  v.  Booth,  36  Ch.  Div.  465. 

«e  Clark,  Cont.  (Hornbook  Series)  p.  374,  c.  & 

«  Greenh.  Pub.  Pol.  p.  357,  rule  300. 


314       GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

sentative  of  a  foreign  government,  and  his  position  is  mere- 
ly honorary."  " 

Any  agreement  which  is  opposed  to  good  morals, — "con- 
tra bonos  mores," — cannot  be  enforced,  although  the  act 
agreed  to  be  done  is  not  in  itself  a  violation  of  a  statute,  or 
such  as  will  render  the  doer  liable  to  a  penalty.  Frequent 
among  such  class  of  agreements  are  those  made  in  consid- 
eration of  present  or  future  illicit  sexual  intercourse  or  co- 
habitation.28 And  any  agreement  which  is  contrary  to  es- 
tablished rules  of  decency  and  morality  is  contrary  to  public 
policy.2* 


SAME— INFERRED    FROM   CONDITION    OF  PARTIES. 

130.  For  convenience  of  discussion,  the  cases  in 
which  constructive  fraud  may  be  inferred 
from  the  circumstances  and  conditions  of 
the  contracting  parties  may  be  divided  into 
the  following  classes: 

(a)  Transactions  with  persons  totally  or  partial- 

ly incapacitated. 

(b)  Transactions  with  persons  under  duress  or  un- 

due influence. 

(c)  Transactions  between  persons  in  fiduciary  re- 

lationship. 

This  subdivision  of  the  subject  of  constructive  fraud  in- 
cludes a  consideration  of  that  species  of  fraud  embraced  un- 
der the  third  head  of  Lord  Hardwicke's  classification.  As 
was  stated  by  this  great  judge:  "A  third  kind  of  fraud  is 

»T  Gray  v.  Hook,  4  N.  Y.  449;  Ormerod  v.  Dearman,  100  Pa.  561; 
Wight  v.  Rlndskopf,  43  Wls.  344;  Rhodes  v.  Neal,  64  Ga,  704,  37  Am. 
Rep.  93;  Halnes  v.  Lewis,  54  Iowa,  301,  6  N.  W.  495,  37  Am.  Rep. 
202;  Trlst  v.  Child,  21  Wall.  441,  22  L.  Ed.  623;  O'Hara  v.  Carpenter, 
23  Mich.  410,  9  Am.  Rep.  89;  Hovey  v.  Storer,  63  Me.  486;  Oscanyan 
V.  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539. 

«•  Ayerst  T.  Jenkins,  L.  R,  16  Eq.  275;  Wallace  v.  Rappleye,  103 
111.  229;  Drennnu  v.  Douglas,  102  111.  341,  40  Am.  Rep.  595;  Hanks 
T.  Naglee,  54  Cal.  51,  35  Am.  Rep.  67;  Forsythe  v.  State,  8  Ohio.  20; 
Saxon  v.  Wood,  4  Ind.  A  pp.  242,  30  N.  E.  797. 

••  Clark,  Cont  (Hornbook  Series)  p.  439. 


§§    131-132)  CONSTRUCTIVE   FRAUD.  315 

that  which  may  be  presumed  from  the  circumstances  and 
condition  of  the  parties  contracting;  and  this  goes  further 
than  the  rule  of  law,  which  is  that  it  must  be  proved,  and  not 
presumed;  but  it  is  wisely  established  in  this  court  to  pre- 
vent taking  surreptitious  advantage  of  the  weakness  or  ne- 
cessity of  another,  which  knowingly  to  do  is  equally  against 
conscience  as  to  take  advantage  of  his  ignorance."  x  Fraud 
vitiates  all  contracts,  but,  as  a  general  rule,  it  is  not  pre- 
sumed, but  must  be  proved.  But,  whenever  the  relations 
between  the  contracting  parties  are  of  such  a  character  as 
to  render  it  certain  that  they  do  not  deal  on  terms  of  equal- 
ity, but  that  either  on  the  one  side  from  superior  knowledge 
of  the  matter  derived  from  a  fiduciary  relation  or  from  over- 
mastering influence,  or  on  the  other  from  weakness,  de- 
pendence, or  trust  justifiably  reposed,  unfair  advantage  in  a 
transaction  is  rendered  probable,  then  the  burden  is  shifted, 
the  transaction  is  presumed  void,  and  it  is  incumbent  upon 
the  stronger  party  to  show  affirmatively  that  no  deception 
was  practiced,  no  undue  influence  was  used,  and  that  all  was 
fair,  open,  voluntary,  and  well  understood.* 


SAME— TRANSACTIONS    WITH     PERSONS    TOTALLY 
OR   PARTIALLY  INCAPACITATED. 

131.  The  contract  of  a  lunatic,  idiot,  or  other  per-  , 

son  completely  non  compos  mentis  may  be 
set  aside,  because  such  persons  are  incapa- 
ble, at  law  and  in  equity,  of  giving  a  true 
consent. 

132.  There  can  be  no  true  consent  or  agreement 

without  a  capacity  to  understand  the  terms 
of  the  agreement.  If  a  person  induces  an- 
other who  lacks  this  capacity  to  enter  into 
an  apparent  contract,  equity  will  not  recog- 
nize the  transaction,  however  it  may  be 
fenced  by  formal  observances,  but,  deeming 

f  130.    i  Earl  of  Chesterfield  y.  Janssen,  2  Ves.  Sr.  125;    Id.,  1 
Atk.  301,  1  White  &  T.  Lead.  Gas.  Eq.  (4th  Am.  Ed.)  773. 
»  Cowee  v.  Cornell,  75  N.  Y.  91,  99,  31  Am.  Rep.  428. 


816  GROUNDS   OF   EQUITABLE    RELIEF FRAUD.          (Ch.    1? 

It  fraudulent,  will  generally  grant  relief 
against  it,  at  the  suit  of  the  party  imposed 
upon  or  his  legal  representatives.1 

One  of  the  fundamental  essentials  of  a  valid  contract  is 
the  assent  of  two  minds.  A  lunatic,  idiot,  or  other  person 
non  compos  mentis  has  no  mind,  and  is,  therefore,  incapable 
of  assenting. 

Insanity. 

Legal  insanity  is  difficult  to  define.  It  is  a  state  or  con- 
dition which  must  be  noted  with  reference  to  each  class  of 
actions  to  which  it  is  applied.  As  a  cause  of  civil  incapacity 
it  is  such  a  defect  or  weakness  as  prevents  rational  assent  to 
a  contract,  or  due  consideration  of  the  facts  properly  and 
naturally  entering  into  the  testamentary  disposition  of  one's 
estate.  It  includes  idiocy,  lunacy,  and  any  mental  derange- 
ment. It  is  generally  held  in  this  country  that  the  contracts 
of  a  lunatic,  made  after  the  fact  of  insanity  has  been  judi- 
cially ascertained,  are  absolutely  void,  until,  by  permission 
of  the  court,  he  is  allowed  to  resume  control  of  his  property.2 
But  in  some  jurisdictions  this  rule  is  not  adhered  to  very 
closely,  for  it  has  been  sometimes  held  that  the  fact  that  a 
person  has  been  adjudged  insane,  and  placed  under  a  guard- 
ianship, only  raises  a  presumption  of  incapacity  to  contract, 
which  may  be  rebutted ;  but  the  presumption  is  very  strong, 
and  the  proof  of  capacity  must  be  clear.'  But  contracts  en- 
tered into  by  a  person  apparently  sane,  before  the  fact  of 
insanity  has  been  established,  are  at  most  only  voidable,  and 
will  not  be  set  aside,  when  the  other  party  has  no  notice  of 

IS  131,  132.     »  Smith,  Eq.  167. 

a  Hughes  v.  Jones,  116  N.  Y.  67,  22  N.  E.  446,  5  L.  R.  A.  637;  Fltz- 
hugh  v.  Wllcox,  12  Barb.  (N.  Y.)  235;  Walt  v.  Maxwell,  5  Pick. 
(Mass.)  217,  16  Am.  Dec.  891.  There  must  be  an  actual  guardian- 
ship. If  the  guardian  Is  discharged  as  being  an  unsuitable  person, 
and  no  other  guardian  Is  appointed,  the  decree  adjudging  the  ward 
insane  is  not  conclusive  as  to  his  Incapacity  after  the  guardian's 
discharge.  Willwerth  v.  Leonard,  156  Mass.  277,  31  N.  E.  299.  The 
rule  does  not  apply  to  statutory  proceedings  to  determine  whether 
a  person  la  insane,  and  In  need  of  care  and  treatment,  for  the  pur- 
pose of  committing  him  to  a  hospital  for  the  insane.  Knox  v.  Haug, 
48  Minn.  58,  50  N.  W.  934. 

•  Mott  v.  Mott,  49  N.  J.  Eq.  192,  22  Atl.  997;  In  re  Gangwere'B 
Estate,  14  Pa.  417;  Parker  v.  Davis,  53  N.  C.  460. 


§§    131-132)  CONSTRUCTIVE    ^RAUD.  317 

the  insanity  and  derives  no  inequitable  advantage,  and  the  par- 
ties cannot  be  placed  in  statu  quo.4  The  reason  for  this  rule 
is  apparent.  Insanity  is  one  of  the  most  mysterious  diseases 
to  which  humanity  is  subject.  The  ripest  professional  skill 
and  the  keenest  observation  sometimes  fail  to  detect  it  in  its 
incipient  stages.  Sound  law  and  good  morals,  therefore, 
alike  forbid  the  rescission  of  a  contract  on  the  ground  of 
insanity  by  one  who  is  unable  or  unwilling  to  restore  the 
property  acquired  thereunder  to  the  other  party,  who  entered 
into  it  in  good  faith,  in  entire  ignorance  of  the  insanity,  and 
without  taking  any  advantage  by  reason  thereof.* 

Mental  Weakness. 

The  mere  fact  that  a  man  is  of  a  weak  understanding,  or  is 
below  the  average  of  mankind  in  intellectual  capacity,  is  not 
of  itself  an  adequate  ground  to  defeat  the  enforcement  of  an 
executory  contract,  or  to  set  aside  an  executed  agreement 
or  conveyance."  But  where  mental  weakness  is  accompa- 
nied by  other  inequitable  incidents, — such  as  undue  influence, 
great  ignorance,  and  want  of  advice,  or  inadequacy  of  con- 
sideration,— equity  will  interfere,  and  grant  either  affirmative 
or  defensive  relief.7  There  is  a  presumption  against  the 
validity  of  a  transaction  with  such  persons,  and  the  burden 
of  proving  their  capacity  to  contract,  and  the  good  faith  and 
fairness  of  the  transaction,  rests  with  those  who  deal  with 
them  If  such  proof  is  not  produced,  the  advantages  gained 

«  Manby  v.  Bewlcke,  8  Kay  &  J.  342;  Yauger  v.  Skinner,  14  N.  J. 
Bq.  389;  Gribben  v.  Maxwell,  34  Kan.  8,  7  Pac.  584;  Schaps  v.  Lehner, 
64  Minn.  208,  55  N.  W.  911;  Abbott  v.  Oreal,  56  Iowa,  175,  9  N.  W. 
115;  Scanlan  v.  Cobb,  85  111.  296.  The  same  rule  applies  to  Idiots. 
Burnham  v.  Kidwell,  113  111.  425.  But  in  New  York  the  deed  of  a 
lunatic  is  absolutely  void,  whether  given  before  or  after  inquisition. 
Van  Deusen1  v.  Sweet,  51  N.  Y.  378. 

e  Lancaster  Co.  Nat.  Bank  v.  Moore,  78  Pa.  407,  414.  And  see 
Haines  v.  Scott,  35  App.  Div.  515,  54  N.  Y.  Supp.  844;  Flach  T. 
Gottschalk  Co.  (Md.)  41  Atl.  908;  JEtna  Life  Ins.  Go.  v.  Sellers, 
(Ind.  Sup.)  56  N.  E.  97;  Farnum  v.  Brooks,  9  Pick.  (Mass.)  212. 

«  Ball  v.  Mannin,  3  Bligh  (N.  S.)  1;  Harrison  v.  Guest,  6  De  Gex, 
M.  &  G.  428;  Burt  v.  Quisenberry,  132  111.  385,  24  N.  B.  622;  Guild 
T.  Hull,  127  111.  523,  20  N.  E.  665;  Davis  v.  Phillips,  85  Mich.  198, 
48  N.  W.  513;  West  v.  Russell,  48  Mich.  74,  11  N.  W.  812. 

*  Boyse  v.  Rossborough,  6  H.  L.  Gas.  2;  Tracey  v.  Sacket,  1  Ohio 
St.  54,  59  Am.  Dec.  610;  Williams  v.  Williams,  63  Md.  371;  Kelly 
v.  Smith.  73  Wis.  191,  41  N.  W.  69;  Allore  v.  Jewell,  94  D.  S.  506, 
24  L.  Ed.  260. 


318       GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

and  benefits  derived  must  be  given  up.8  There  are,  how- 
ever, certain  conditions  of  mental  weakness,  not  being  lunacy 
or  idiocy,  resulting  from  sickness,  old  age,  or  other  cause, 
which  will  be  ground  in  itself  for  setting  aside  the  person's 
contracts,  although  there  are  no  attendant  inequitable  inci- 
dents.* 

Drunkenness. 

Drunkenness  which  does  not  affect  the  understanding  and 
the  will  does  not  constitute  a  defense,  in  equity,  to  an  action 
for  the  enforcement  of  an  executory  contract,  nor  will  af- 
firmative relief  be  granted  because  thereof.  To  render  a 
transaction  voidable  because  of  drunkenness,  it  must  have 
been  such  as  to  drown  reason,  memory,  and  judgment,  and 
have  impaired  the  mental  faculties  to  such  an  extent  as  to 
render  the  victim  non  compos  mentis.10  Drunkenness  of 
this  nature  is  open  to  the  observation  of  every  one,  and  one 
who  deals  with  a  person  intoxicated  to  such  an  extent  is 
necessarily  guilty  of  inequitable  conduct.  A  slighter  degree 
of  intoxication  will  not  be  a  ground  of  equitable  interference, 
since  equity  is  equally  unwilling  to  assist  the  person  who  has 
immorally  incapacitated  himself,  or  the  person  who  has  im- 
morally taken  advantage  of  the  incapacity.11  But,  if  one 
person  has  designedly  contrived  to  entice  another  into  intox- 
ication, for  the  purpose  of  imposing  on  him  while  in  that 
state,  equity  will  interfere  to  prevent  the  enjoyment  of  the 
advantage  thus  fraudulently  secured.11 

•  Longmate  v.  Ledger,  2  GIff.  157,  164;  Oowee  v.  Cornell,  75  N.  Y. 
91,  99,  100;    Highberger  v.  Stiffler,  21  Md.  338,  83  Am.  Dec.  593; 
Wilkinson  v.  Sherman,  46  N.  J.  Eq.  421,  18  Atl.  228;    Gates  v.  Cor- 
nett,  72  Mich.  420,  40  N.  W.  740. 

•  See  Shakespeare  v.  Markham,  72  N.  Y.  400;   King  v.  Cummlngs, 
60  Vt  502,  11  Atl.  727;    Campbell  y.  Campbell,  130  111.  406,  22  N.  E. 
620,  6  L.  R.  A.  167. 

10  Bates  v.  Ball,  72  111.  108;  Loftus  v.  Maloney,  89  Va.  576,  16 
8.  E.  749;  Crane  v.  Conklln,  1  N.  J.  Eq.  346,  22  Am.  Dec.  519. 

nCooke  v.  Clay  worth,  18  Ves.  12;  Johnson  v.  Medlicott,  3  P. 
Wms.  130,  note;  Shackelton  v.  Sebree,  86  111.  616.  Equity  will  not 
permit  the  rescission  of  a  contract  for  intoxication  by  one  unable  to 
restore  the  property  acquired  thereunder,  since  to  do  so  would  per- 
mit "intoxicated  people  to  acquire  property,  and  build  up  fortunes 
for  themselves,  on  drunken  Incapacity  alone."  Youn  y.  Lament,  56 
Minn.  216,  57  N.  W.  478,  480. 

»»  Cory  v.  Cory,  1  Ves.  Sr.  19;  Rottenburgh  v.  Fowl  (N.  J.  Ch.) 
26  Atl.  338;  Freeman  y.  Staats,  9  N.  J.  Eq.  816;  Wurnock  y.  Camp- 


§    133)  CONSTRUCTIVE    FRAUD.  819 

SAME— TRANSACTIONS  WITH  PERSONS  UNDER  DU- 
RESS OR  UNDUE  INFLUENCE. 

133.  Equitable  relief  will  be  afforded,  either  defen- 
sively or  affirmatively,  against  a  contract 
or  conveyance  obtained  by  actual  duress, 
or  under  circumstances  constituting  undue 
influence. 

Duress. 

Duress  is  a  species  of  fraud.  It  means  some  actual  or 
threatened  personal  violence  against,  or  imprisonment  of,  a 
person,  or  of  his  very  near  relative,  by  reason  of  which  he  is 
forced  or  induced  to  enter  into  a  contract.1  The  ground 
upon  which  a  contract  entered  into  under  duress  can  be 
avoided  is  that  there  is  no  real  consent.  The  apparent  con- 
sent is  unreal,  because  of  the  imprisonment  or  force,  or  of 
the  fear  caused  by  the  threats.2  In  determining  what  con- 
stitutes duress,  equity  follows  the  law,  although  equity  will 
interfere  in  many  instances  where  there  is  no  legal  duress, 
and  where  the  party  injured  could  have  no  relief  at  the  com- 
mon law.* 

Undue  Influence. 

The  exercise  of  undue  influence  raises  a  presumption  of 
fraud.  "Fraud  does  not  here  mean  deceit  or  circumvention ; 

bell,  25  N.  J.  Eq.  485;  O'Connor  v.  Rempt,  29  N.  J.  Eq.  156;  Dunn  T. 
Amos,  14  Wis.  106. 

§  133.     i  Clark,  Cont  (Hornbook  Series)  p.  356. 

*  Brown  v.  Pierce,  7  Wall.  205,  19  L.  Ed.  134,  where  it  Is  said: 
"Actual  violence  Is  not  necessary  to  constitute  duress,  *  *  *  be- 
cause consent  is  the  very  essence  of  a  contract,  and,  if  there  be 
compulsion,  there  is  no  actual  consent;  and  moral  compulsion,  such 
as  that  produced  by  threats  to  take  life,  or  to  inflict  great  bodily 
harm,  as  well  as  that  produced  by  imprisonment,  is  everywhere  re- 
garded as  sufficient,  in  law,  to  destroy  free  agency,  without  which 
there  can  be  no  contract,  because,  In  that  state  of  the  case,  there 
is  no  consent.  Duress,  in  its  more  extended  sense,  means  that  de- 
gree of  constraint  or  danger,  either  actually  inflicted  or  threatened 
and  Impending,  which  is  suflacient,  in  severity  or  apprehension,  to 
overcome  the  mind  and  will  of  a  person  of  ordinary  firmness." 

»  Pom.  Eq.  Jur.  §  950;  Francis  v.  Wilkinson,  147  111.  370,  35  N. 
E.  150;  Radich  v.  Hutchins,  95  U.  S.  210,  24  L.  Ed.  409;  Tilley  v. 
Damon,  11  Oush.  (Mass.)  247;  Fairbanks  v.  Snow,  145  Mass.  153, 


320        GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

it  means  an  unconscientious  use  of  the  power  arising  out  of 
the  circumstances  and  conditions  of  the  contracting  parties ; 
and,  when  the  relative  condition  of  the  parties  is  such  as 
prima  facie  to  raise  this  presumption,  the  transaction  can- 
not stand  unless  the  person  claiming  the  benefit  of  it  is  able 
to  repel  the  presumption  by  contrary  evidence,  proving  it  to 
have  been,  in  point  of  fact,  fair,  just,  and  reasonable."  *  It 
is  not  appropriate  at  this  time  and  place  to  designate  in  de- 
tail the  circumstances  and  conditions  which  will  give  rise  to 
what  the  law  regards  as  undue  influence.6  The  equitable 
doctrine  relative  to  undue  influence  is  applied  in  a  very  great 
variety  of  cases.  It  may  consist:  (i)  In  the  use  by  one  in 
whom  confidence  is  reposed  by  another,  or  who  holds  a  real 
or  apparent  authority  over  him,  of  such  confidence  or  au- 
thority for  the  purpose  of  obtaining  an  unfair  advantage  over 
him ;  or  (2)  in  taking  an  unfair  advantage  of  another's  weak- 
ness of  mind;  or  (3)  in  taking  a  grossly  oppressive  and  un- 
fair advantage  of  another's  necessities  and  distress.'  In  all 
such  cases  equity  will  interfere  to  set  aside  the  obligation  or 
conveyance  obtained  by  unfair  advantage.  To  warrant  equi- 
table interference,  however,  the  undue  influence  must  have 
been  of  such  a  nature  as  to  deprive  the  complainant  of  his 
free  agency,  and  thus  to  render  his  act  more  the  offspring  of 
the  will  of  another  than  of  his  own.T 

13  N.  B.  596;  Morgan  y.  Joy,  121  Mo.  677,  26  S.  W.  670;  Schoell- 
hamer  v.  Rometsch,  26  Or.  394,  38  Pac.  344. 

«  Lord  Selborne  In  Earl  of  Aylesford  v.  Morris,  8  Ch.  App.  490; 
Green  v.  Roworth,  113  N.  Y.  462,  21  N.  E.  165,  3  Keeners,  Eq.  Cas. 
815;  In  re  Nelson's  Will,  39  Minn.  204,  39  N.  W.  143. 

•  Clark,  Cont.  (Hornbook  Series)  p.  364. 

•  Proposed  Civ.  Code  N.  Y.  9  231   (Field's  Code);    Clark,   Cent 
p.  364. 

i  Francis  v.  Wilkinson,  147  111.  370,  35  N.  E.  150.  Cases  where 
transaction  was  aA-oided  for  undue  influence:  Evans  v.  Uewellln, 
1  Cox,  Ch.  833,  340;  Lyon  v.  Home,  L.  R,  6  Eq.  655;  Lelghton  T. 
Orr,  44  Iowa.  679;  Aldrldge  v.  Aldridge,  120  N.  Y.  614,  24  N.  B. 
1022;  Rau  v.  Von  Zedlitz,  132  Mass.  164,  3  Keener,  Eq.  Car  784; 
Haydock's  Ex're  v.  Haydock,  33  N.  J.  Eq.  494,  3  Keener,  Eq.  Cas. 
807;  Gay  v.  Wltherspoon  (Ky.)  16  S.  W.  96;  Todd  v.  Grove,  33  Md. 
194.  Cases  where  It  was  held  that  no  undue  Influence  existed: 
Hollocher  v.  Hollocher,  62  Mo.  267;  Furlong  v.  Sanford,  87  Va.  506, 
12  S.  E.  1048;  Earle  v.  Hosiery  Co.,  36  N.  J.  Eq.  188;  Burt  v.  Qulsen- 
berry.  132  I1L  385,  24  S.  B.  622;  Howe  v.  Howe,  99  Mass.  88. 


§    134)  CONSTRUCTIVE    FRAUD.  321 

SAME— TRANSACTIONS   BETWEEN   PERSONS  IN   FI- 
DUCIARY RELATIONSHIP. 

134.  Whenever  two  persons  stand  in  such  relation 
that,  while  it  continues,  confidence  is  neces- 
sarily reposed  by  one,  and  the  influence 
which  naturally  grows  out  of  that  confi- 
dence is  possessed  by  the  other,  and  this 
confidence  is  abused,  or  the  influence  is  ex- 
erted to  obtain  an  advantage  at  the  expense 
of  the  confiding  party,  the  person  so  avail- 
ing himself  of  his  position  will  not  be  per- 
mitted to  retain  the  advantage,  although 
the  transaction  could  not  have  been  im- 
peached if  no  such  confidential  relationship 
had  existed.1 

A  fiduciary  relationship  between  two  parties  implies  a  de- 
pendence of  one  upon  the  other,  and  a  court  of  equity  will 
carefully  scrutinize  every  transaction  in  which  the  superior 
party  secures  an  advantage.  The  obtaining  of  a  possible 
benefit  by  such  superior  party  raises  a  presumption  against 
the  validity  of  the  transaction,  and  it  is  incumbent  upon  him 
to  show  that  all  the  requirements  which  equity  insists  upon 
have  been  complied  with.  As  has  been  said  by  an  able  Eng- 
lish judge :  "The  broad  principle  upon  which  the  court  acts 
in  cases  of  this  description  is  that  wherever  there  exists  such 
a  confidence,  of  whatever  character  that  confidence  may  be, 
as  enables  the  person  in  whom  confidence  or  trust  is  reposed 
to  exert  influence  over  the  person  trusting  him,  the  court 
will  not  allow  any  transaction  between  the  parties  to  stand 
unless  there  has  been  the  fullest  and  fairest  explanation  and 
communication  of  every  particular  resting  in  the  breast  of 
the  one  who  seeks  to  establish  a  contract  with  the  person  so 
trusting  him."  a 

It  is  a  rule  of  equity  that  no  man  can  be  permitted  to  take 

§  134.    i  Tate  v.  Williamson,  2  Ch.  App.  55,  60,  61,  per  Lord 
Chelrnsford. 
a  Tate  v.  Williamson,  L.  R.  1  Eq.  528,  536,  per  Page  Wood,  V.  C. 

EATON,EQ.— 21 


322  GROUNDS    OF    EQUITABLE    RELIEF FHAUD.          (Ch.    13 

a  benefit  when  he  has  a  duty  to  perform  which  is  inconsist- 
ent with  his  acceptance  of  the  benefit.*  This  rule  is  found- 
ed on  considerations  of  public  policy,  since  the  condition  of 
the  parties  would  generally  render  it  extremely  difficult  to 
obtain  positive  evidence  of  the  fairness  of  transactions  which 
are  so  peculiarly  open  to  fraud  and  undue  influence.  The 
rule  exists  as  a  bar  against  temptation.4  The  relationship 
may  not  be  of  a  definite  and  well-defined  character,  such  as 
trustee  and  beneficiary,  guardian  and  ward,  and  the  like. 
The  rule  applies  to  all  cases  where  confidence  on  the  one 
hand  and  influence  on  the  other  exist,  from  whatever  cause 
they  may  spring.5  As  has  been  said,  the  familiar  cases  of 
the  influence  of  a  parent  over  his  child,  of  a  guardian  over 
his  ward,  of  an  attorney  over  his  client,  are  but  instances  of 
a  broad  and  widely  applicable  principle." 

Trustees  and  Beneficiaries. 

Trustees  and  beneficiaries  have  relations  that,  from  their 
nature,  must  be  confidential.  The  value  of  the  trust  estate, 
and  all  matters  in  respect  thereto,  are  peculiarly  within  the 
knowledge  of  the  trustee,  of  which  the  beneficiary,  not  being 
in  control  of  his  property,  may  be  ignorant.  The  trustee, 
from  his  commanding  position,  generally  possesses  an  in- 
fluence which  would  naturally  place  him  at  an  advantage  in 
all  his  dealings  with  the  beneficiary.1  There  are  two  classes 
of  cases  involving  the  considerations  of  dealings  by  a  trustee 

•  Bennett  v.  Austin,  81  N.  Y.  308,  332;    Robinson  v.  Pert,  3  P. 
Wms.  249;    Van  Epps  v.  Van  Epps,  9  Paige  (N.  Y.)  241. 

•  Herne  v.  Meeres,  1  Vern.  465. 

•  McCormlck  v.  Malln,  5  Blackf.  (Ind.)  509.     And  see  Shlpman  v. 
Furniss,  69  Ala.  555,  44  Am.  Rep.  528;    Brown  v.  Burbank,  64  Cat 
99,  27  Pac.  940;   Rockafellow  v.  Newcomb,  57  III.  186;   Kline  v. 
Kline,  57  Pa,  120. 

•  Smith  v.  Kay,  7  H.  L.  Oas.  771. 

i  Romaine  v.  Hendrickson's  Ex'rs,  27  N.  J.  Eq.  162,  where  the 
court  says:  "One  of  the  most  obvious  purposes  [of  the  rule]  Is  to 
prevent  the  trustee  from  using  his  knowledge  of  the  character  and 
value  of  the  property,  and  of  the  wants,  necessities,  and  situation  of 
the  cestul  que  trust,  and  his  power  over  the  estate,  to  the  prejudice 
of  the  cestul  que  trust  *  *  *  The  object  of  the  rule  is  to  pre- 
vent the  trustee  from  using  his  information  and  power  to  the  preju- 
dice of  the  cestul  que  trust  Whether  they  are  used  for  the  benefit 
of  th*  trustee  or  some  other  person  against  the  cestul  que  trust,  the 
consequences  are  the  same  to  him,  and  in  either  case  justice  requires 
the  cestui  que  trust  shall  have  the  right  to  avoid  the  sale," 


§   134)  CONSTRUCTIVE   FRAUD.  323 

with  the  trust  estate  and  the  beneficiary:  (i)  When  the 
trustee  contracts  with  himself,  without  the  intervention  of 
the  beneficiary;  (2)  when  he  deals  directly  with  the  benefi- 
ciary. 

(i)  There  is  no  equitable  principle  more  firmly  grounded 
in  good  reason,  morality,  and  sound  public  policy  than  that 
a  trustee  cannot  so  execute  a  trust  as  to  derive  any  benefit 
for  himself.8  And  it  is  also  firmly  fixed  that  a  trustee  can- 
not, in  the  performance  of  his  trust,  directly  or  indirectly  be- 
come the  purchaser  of  any  portion  of  the  trust  property, 
whether  it  be  realty,  personalty,  or  mercantile  assets,  with- 
out the  knowledge  and  consent  of  the  beneficiary.  Such  a 
purchase  is  voidable  at  the  option  of  the  beneficiary,  al- 
though the  trustee  may  have  given  an  adequate  price,  and 
gained  no  advantage.9  It  is  entirely  immaterial  whether  the 
sale  be  private  or  at  public  auction,10  or  under  a  judicial 
decree,11  or  whether  the  trustee  purchases  personally  or 
through  an  agent,12  or  whether  he  purchases  for  himself  or 
as  agent  for  some  third  person.18  In  all  these  cases  the 
rule  is  inflexible  that  the  transaction  is  voidable  at  the  option 
of  the  cestui  que  trust.  The  trustee  cannot  be  both  vendor 

•  Forbes  v.  Ross,  2  Cox,  Ch.  116. 

•  Fox  v.  Mackreth,  2  Brown,  Ch.  400;    Id.,  1  White  &  T.  Lead. 
Cas.  Eq.  (4th  Am.  Ed.)  125;    Dyer  v.  Shurtleff,  112  Mass.  165,  17 
Am.  Rep.  77;    Romaine  v.  Hendrickson's  Ex'rs,  27  N.  -J.  Eq.  162; 
Munson  v.  Railroad  Co.,  103  N.  Y.  58,  8  N.  E.  355;    Price's  Adm'r  v. 
Thompson,  84  Ky.  219,  1  S.  W.  408;    Carrier  v.  Heather,  62  Mich. 
441,  29  N.  W.  38;    Scott  v.  Lumber  Co.,  67  Cal.  71,  7  Pac.  131;   Cush- 
man  v.  Bonfield,  139  111.  219,  28  N.  E.  937.     Purchase  of  trust  prop- 
erty by  a  trustee  at  a  public  sale  is  only  voidable,  and  will  be  rati- 
fied unless  the  beneficiary  repudiates  it  within  a  reasonable  time. 
Hammond  v.  Hopkins,  143  U.  S.  224,  12  Sup.  Ct.  418,  36  L.  Ed.  134; 
Scott  v.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45  Am.  Dec.  310. 

1(>  Ex  parte  Lacey,  ti  Ves.  629;  Ex  parte  James,  8  Ves.  348; 
Michoud  v.  Girod,  4  How.  503,  11  L.  Ed.  1076. 

11  Gary  v.  Gary,  2  Schoales  &  L.  175;    Feamster  v.  Feamster,  35 
W.  Va.  1,  13  S.  E.  53;    Carter  v.  Burr,  46  N.  J.  Eq.  134,  18  Atl.  463; 
Tracy  v.  Colby,  55  CaL  67;    Tracy  v.  Craig,  Id.  91;   Powell  v.  Powell, 
80  Ala,  11. 

12  Campbell  v.  Walker,  5  Ves.  678;    Ingle  v.  Richards,  28  Beav. 
861;   Houston  r.  Bryan,  78  Ga,  181,  1  S.  E.  252;   Bassett  v.  Schoe- 
maker,  46  N.  J.  Eq.  538,  20  Atl.  52. 

i»Ex  parte  Bennett,  10  Ves.  381,  400;  North  Baltimore  Bldg. 
Ass'u  y.  Caldwell,  25  Md.  420,  90  Am.  Dec.  67. 


324       GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

and  vendee.     He  cannot  represent  in  himself  two  opposite 
and  conflicting  interests.14 

(2)  Dealings  between  a  trustee  and  his  cestui  que  trust  ar<* 
presumptively  invalid.  Any  purchase,  or  other  transaction 
between  them,  whereby  the  trustee  obtains  an  advantage, 
even  if  the  consideration  thereof  is  adequate,  and  no  undue 
advantage  is  obtained,  is  prima  facie  voidable  at  the  option 
of  the  cestui  que  trust.15  But  there  is  no  rule  of  law  or  equi- 
ty which  makes  dealings  between  trustees  and  their  cestui 
que  trust  absolutely  invalid.  Dealings  between  parties  thus 
situated,  resulting  in  a  benefit  conferred  upon,  or  an  advan- 
tage gained  by,  the  trustee,  naturally  excite  suspicion,  and, 
when  this  situation  is  shown,  the  burden  of  relieving  himself 
from  the  suspicion  thus  engendered  is  cast  upon  the  trustee, 
and  he  must  show,  either  by  direct  proof  or  circumstances, 
that  the  transaction  was  free  from  fraud  or  undue  influence, 
and  that  the  cestui  que  trust  acted  without  restraint,  and 
under  no  coercion  or  pressure,  direct  or  indirect,  of  the  trus- 
tee.16 The  transaction  will  ordinarily  be  permitted  to  stand 
if  the  trustee  proves  that  the  beneficiary  clearly  understood 
with  whom  he  was  dealing,  and  made  no  objection  to  the 
transaction,  and  that  the  trustee  fairly  and  honestly  disclosed 
all  that  he  knew  respecting  the  property,  gave  a  just  and  fair 
price,  and  did  not  surreptitiously  secure  any  advantage  for 
himself." 

Principal  and  Agent, 

The  rules  respecting  contracts  and  transactions  between  a 
trustee  and  the  beneficiary  are  the  same,  and  are  nearly  as 
strictly  applied,  where  the  parties  are  in  the  relation  of  prin- 

»*  Wormley  v.  Wormley,  8  Wheat.  421,  5  L.  Ed.  651. 

»•  Pom.  Eq.  Jur.  §  958;  Cowee  v.  Cornell,  75  N.  Y.  100,  31  Am. 
Rep.  428;  Coles  v.  Trecothick,  9  Ves.  234;  Spencer's  Appeal,  80  Pa. 
817;  Nichols  v.  McCarthy,  53  Conn.  299,  23  All.  93,  55  Am.  Rep.  155. 

i«  Barnard  v.  Gantz,  140  N.  Y.  249,  35  N.  E.  430;  In  re  Smith,  95 
N.  Y.  522. 

"  Coles  T.  Trecothick,  0  Ves.  234,  246,  where  Lord  Eldon  said: 
"A  trustee  may  buy  from  the  cestui  que  trust,  provided  there  Is  a 
clear  and  distinct  contract,  ascertained  to  be  such  after  a  Jealous 
and  scrupulous  examination  of  all  the  circumstances,  that  the  cestui 
que  trust  Intended  that  the  trustee  should  buy;  and  there  is  no 
fraud,  no  concealment,  no  advantage  taken  by  the  trustee  of  in- 
formation acquired  by  him  in  the  character  of  trustee."  And  see 
Barnard  v.  Stone,  159  Mass.  224.  34  N.  E.  272;  Williams  v.  Powell, 


§    134)  CONSTRUCTIVE    FRAUD.  325 

cipal  and  agent.  A  person  who  is  an  agent  for  another  un- 
dertakes a  duty  which  he  is  bound  to  perform  to  the  utmost 
advantage  of  the  person  who  employs  him.  He  cannot  be 
allowed  to  place  himself  in  a  situation  which,  under  ordinary 
circumstances,  might  tempt  him  not  to  do  that  which  is  best 
for  his  principal.18  If  the  agent  deals  with  the  subject-mat- 
ter of  the  agency,  or,  by  departing  from  the  instructions  of 
his  principal,  obtains  a  better  result  than  could  have  been 
obtained  by  following  them,  the  principal  can  claim  the  ad- 
vantage thus  obtained,  even  though  the  agent  may  have  con- 
tributed his  own  funds  or  responsibility  in  producing  the  re- 
sult. The  rule  which  places  it  beyond  the  power  of  the  agent 
to  profit  by  such  transactions  is  founded  upon  considerations 
of  policy,  and  is  intended  not  merely  to  afford  a  remedy  for 
discovered  frauds,  but  to  reach  those  which  may  be  con- 
cealed ;  and  also  to  prevent  them,  by  removing  from  agents 
all  inducement  to  attempt  dealing  for  their  own  benefit  in 
matters  which  they  have  undertaken  for  others,  or  to  which 
their  agency  relates.19  It  is,  therefore,  settled  that  an  agent 
who  is  employed  to  sell  cannot  become  the  purchaser  sur- 
reptitiously, and  without  the  knowledge  and  consent  of  his 
employer ; 20  nor  can  an  agent  employed  to  purchase  buy 
secretly  from  himself,  or  for  his  own  benefit.21  All  such 
transactions  are  voidable  at  the  option  of  the  principal. 

66  Ala.  20,  41  Am.  Rep.  742;  Colton  v.  Stanford,  82  Cal.  351,  23  Pac. 
16,  16  Am.  St.  Rep.  137;  Marshall  v.  Stephens,  8  Humph.  159,  47 
Am.  Dec.  601. 

is  East  India  Co.  v.  Henchman,  1  Ves.  Jr.  289;  Keighler  v.  Manu- 
facturing Co.,  12  Md.  383,  71  Am.  Dec.  600;  Neuendorff  v.  Insurance 
Co.,  69  N.  Y.  389;  Dutton  v.  Willner,  52  N.  Y.  312;  Wilber  v.  Lynde, 
49  Cal.  290,  19  Am.  Rep.  645;  Crumley  v.  Webb,  44  Mo.  444,  100 
Am.  Dec.  304., 

i»  Keech  v.  Sandford,  2  Eq.  Cas.  Abr.  741;  York  Bldg.  Co.  v.  Mac- 
Kenzle,  8  Brown,  Parl.  Cas.  (Toml.  Ed.)  Append.  42,  3  Pa  ton,  378; 
Davoue  v.  Fanning,  2  Johns.  Ch.  (N.  Y.)  252;  Moore  v.  Moore,  5  N. 
Y.  256;  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192;  Dutton 
T.  Willner,  52  N.  Y.  312;  Ringo  v.  Binns,  10  Pet.  269,  9  L.  Ed.  420. 

20  Ex  parte  Hughes,  6  Ves.  617;    Lewis  v.  Hillman,  3  H.  L.  Cas. 
607;    Copeland  v.   Insurance   Co.,  6  Pick.   (Mass.)    198;    Adams   v. 
Sayre,  70  Ala.  318;    Fry  v.  Platt,  32  Kan.  62,  3  Pac.  781;    Euneau 
v.  Rieger,  105  Mo.  659,  16  S.  W.  854;    Hodgson  v.  Raphael,  105  Ga, 
480,  30  S.  E.  416;    Dana  v.  Trust  Co.,  99  Wis.  663,  75  N.  W.  429. 

21  Tyrrell  v.  Bank,  10  H.  L.  Gas.  26;  Conkey  v.  Bond,  36  N.  Y.  427; 
Tewksbury  v.  Spruance,  75  I1L  187;   Disbrow  T.  Secor,  58  Conn.  35, 
18  AtL  981. 


326  GROUNDS    OF    EQUITABLE    IlELIKF FRAUD.          (Ch.    13 

Dealings  between  the  principal  and  his  agent  in  respect  to 
the  subject-matter  of  the  agency  are  not  necessarily  invalid. 
There  is,  however,  a  presumption  against  their  validity,  and 
it  is  incumbent  upon  the  agent  seeking  to  uphold  them  to 
satisfactorily  show  that  there  was  no  unfairness  on  his  part, 
that  he  concealed  no  material  fact  connected  with  the  sub- 
ject of  the  transaction,  that  he  disclosed  all  knowledge  in  his 
possession  in  regard  thereto,  and  that  the  price  paid  was 
adequate.22  Mere  sufficiency  of  consideration  and  absence 
of  undue  influence  will  not  be  sufficient;  there  must  be  proof 
of  good  faith  and  absolute  fairness. 

Attorney  and  Client. 

The  rules  governing  transactions  between  principal  and 
agent  are  even  more  rigidly  applied  to  those  between  at- 
torney and  client.  The  client  is  entitled  to  the  full  benefit  of 
the  best  exertions  of  his  attorney,  and  the  highest  degree  of 
good  faith  is  required  of  him  in  all  his  dealings  with  his  client. 
In  England,  contracts  for  compensation  have  always  been 
closely  scrutinized,  and  prior  to  33  &  34  Viet.  c.  28,  §  4,  and 
44  &  45  Viet.  c.  44,  §  8,  an  agreement  to  pay  a  gross  sum  for 
future  services  was  voidable  at  the  option  of  the  client.2* 
And,  while  an  agreement  between  a  client  and  his  solicitor  to 
pay  a  gross  sum  for  part  services  has  been  held  valid  in  the 
English  courts,24  the  solicitor  must  use  great  caution,  and 
preserve  sufficient  evidence  that  the  agreement  was  fair,  and 
that  his  client  was  not  under  the  influence  of  the  pressure 
arising  from  the  relationship,28 — a  pressure  characterized  as- 
"the  crushing  influence  of  an  attorney  who  has  the  affairs 
of  a  man  in  his  hand."  "  The  American  courts  have  not 
been  so  strict  in  their  surveillance  of  agreements  between  at- 
torneys and  their  clients  for  compensation  for  the  perform- 

•  2  Walsham  v.  Stalnton,  1  De  Gex,  J.  &  S.  678;  Keith  v.  Kellara 
(O.  C.)  35  Fed.  243;  Le  Gendre  v.  Byrnes,  44  N.  J.  Eq.  372,  14  Atl. 
621;  Kerby  v.  Kerby,  57  Md.  345;  Rochester  v.  Levering,  104  Ind. 
6(52,  4  N.  E.  203;  Cook  v.  Woolen-Mill  Co.,  43  Wls.  433.  It  Is  not 
enough  for  an  agent  to  tell  the  principal  that  he  Is  going  to  have 
an  Interest  in  the  purchase,  or  to  have  a  part  in  the  purchase.  He 
must  tell  him  all  the  material  facts.  He  must  make  a  full  dis- 
closure. Jessup.  M.  R.,  in  Dunne  v.  English,  L.  B.  18  Eq.  524. 

»»  In  re  Newman,  80  Bear.  190. 

»« In  re  Russell,  30  Ch.  Div.  114. 

»•  Morgan  v.  Higgins.  1  Giff.  277. 

M  Lord  Thurlow,  la  Be  Mewiuaii,  30  Bear.  190. 


§    134)  CONSTRUCTIVE    FRAUD.  327 

ance  of  legal  services,*1  and  in  most  instances  such  agree- 
ments have  been  sustained  if  they  are  free  from  fraud,  undue 
influence,  or  exorbitance.28 

Contracts  of  purchase,  sale,  and  the  like,  entered  into  be- 
tween an  attorney  and  his  client  while  the  relationship  ex- 
ists, may  be  valid.  But  there  is  a  presumption  against  their 
validity,  which  casts  upon  the  attorney  the  burden  of  prov- 
ing that  they  were  fair,  just,  and  in  the  utmost  good  faith 
on  his  part;  that  his  client  acted  oh  full  information  of  all 
the  material  circumstances ;  and  that  he  did  not  take  undue 
advantage  of  his  client's  complaisance,  confidence,  ignorance, 
or  misconception."  As  Lord  Eldon  said:  "The  attorney 
must  prove  that  his  diligence  to  do  the  best  for  his  vendor 
has  been  as  great  as  if  he  was  only  an  attorney  dealing  for 
that  vendor  with  a  stranger."  *° 

*T  Judge  Pomeroy  deplores  this  condition  of  affairs  in  the  follow- 
ing language:  "I  venture  the  suggestion  that  no  single  circum- 
stance has  done  more  to  debase  the  practice  of  the  law  in  the 
popular  estimation,  and  even  to  lower  the  lofty  standard  of  pro- 
fessional ethics  and  self-respect  among  the  members  of  the  legal 
profession  itself,  In  large  portions  of  our  country,  than  the  nature 
of  the  transactions,  often  in  the  highest  degree  champertous,  be- 
tween attorney  and  client,  which  are  permitted,  and  which  have 
received  judicial  sanction.  It  sometimes  would  seem  that  the  fidu- 
ciary relation  and  the  opportunity  for  undue  influence,  instead  of 
being  the  grounds  for  invalidating  such  agreements,  are  practically 
regarded  rather  as  their  excuse  and  justification."  Pom.  Eq.  Jur. 
i  960,  note. 

as  Planters'  Bank  of  Tennessee  v.  Homberger,  4  Cold.  (Tenn.)  531; 
Blaisdell  v.  Ahern,  144  Mass.  393,  11  N.  E.  681;  Manning  v.  Sprague, 
148  Mass.  18,  18  N.  E.  673,  1  L.  11.  A.  516;  Ryan  v.  Ashton,  42  Iowa, 
865;  Ballard  v.  Carr,  48  Cal.  74.  In  Elmore  v.  Johnson,  143  111.  513, 
82  N.  E.  413,  21  L.  R.  A,  366,  it  was  held  that,  where  value  of  prop- 
erty depends  on  the  result  of  litigation  as  to  title,  a  contract  made 
during  its  pendency  to  compensate  the  attorney  with  part  of  the 
property  is  voidable  at  the  client's  election,  irrespective  of  the  fair- 
ness or  unfairness  of  the  transaction,  provided  such  election  is  exer- 
cised within  a  reasonable  time. 

«  Place  v.  Hay  ward,  117  N.  Y.  487,  497,  23  N.  E.  25;  Dunn  v. 
Dunn,  42  N.  J.  Eq.  431,  7  Atl.  842;  Baker  v.  Humphrey,  101  U.  S. 
494,  25  L.  Ed.  1065;  Dunn  v.  Record,  63  Me.  17;  Merryman  v.  Euler, 
59  Md.  588.  43  Am.  Dec.  564;  Gresley  v.  Mousley,  4  De  Gtex  &  J.  78; 
Luddy's  Trustee  v.  Pearce,  33  Ch.  Div.  500. 

»«  Gibson  v.  Jeyes,  6  Yes.  266,  271. 


028        GROUNDS  OF  EQUITABLE  BELIEF FRAUD.    (Cll.  13 

Guardian  and  Ward. 

During  the  existence  of  a  guardianship  the  relative  situa- 
tion of  the  parties  imposes  a  general  restriction  upon  deal- 
ings with  each  other,  and  transactions  between  them  during 
such  period  are  generally  held  voidable  at  the  option  of  the 
ward.81  And  this  equitable  restriction  exists  to  a  large  ex- 
tent, even  after  the  termination  of  the  guardianship,  if  the 
influence  of  the  guardian  and  the  dependence  of  the  ward 
in  fact  or  presumptively  continues.82  But  when  the  prop- 
erty of  the  ward  has  actually  and  wholly  come  into  his  pos- 
session, and  the  guardian's  duties  are  completed,  and  his 
control  of  the  person  of  the  ward  has  ceased,  transactions 
between  them  may  be  sustained  if  full  knowledge  and  free 
consent  on  the  part  of  the  ward  and  good  faith  and  fair  deal- 
ing on  the  part  of  the  guardian  are  shown." 

Parent  and  Child. 

Contracts  between  parent  and  child  are  not  subject  to 
the  same  degree  of  suspicion  as  between  guardian  and  ward ; 
but  they  are  carefully  scrutinized  in  equity,  and,  if  there  is 
any  evidence  of  unfairness  or  undue  influence,  they  will  not 
be  permitted  to  stand.84  The  doctrine  in  relation  to  such 
cases  has  been  expressed  as  follows:  "Transactions  be- 
tween parent  and  child  may  proceed  upon  arrangements  be- 
tween them  for  the  settlement  of  property,  or  of  their  rights 
in  property  in  which  they  are  interested.  In  such  cases  courts 
of  equity  regard  the  transactions  with  favor.  They  do  not 
minutely  weigh  the  considerations  on  one  side  or  the  other. 
Even  ignorance  of  rights,  if  equal  on  both  sides,  may  not 
avail  to  impeach  the  transaction.  On  the  other  hand,  the 
transaction  may  be  one  of  bounty  from  the  child  to  the 

•i  Hylton  v.  Hylton,  2  Ves.  Sr.  548,  549;  Hatch  v.  Hatch,  9  Ves. 
292. 

•a  Powell  v.  Glover,  8  P.  Wins.  251,  note;  Hendee  v.  Cleaveland, 
64  Vt.  142;  Walker  v.  Walker,  101  Mass.  109;  Meek  v.  Perry,  36 
Miss.  190;  Noble'i  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  60 
Am.  Rep.  175;  Carter  v.  Tice,  11*0  111.  277,  11  N.  E.  521). 

»«  Klrby  v.  Taylor,  6  Johns.  Ch.  (N.  Y.)  242;  Cowan's  Appeal,  74 
Pa.  829;  Sherry  v.  Sansberry,  3  Ind.  320;  Ralston  v.  Turpin,  129 
U.  S.  663,  9  Sup.  Ct  420.  32  L.  Ed.  747. 

««  Williams  v.  Williams.  63  Md.  371;  Noble's  Adm'r  T.  Moses.  74 
Ala,  604;  Id.,  81  Ala,  530,  1  South.  217,  60  Am.  Rep.  175;  Davis  v. 
Dunne,  46  Iowa,  684;  Wright  v.  Vanderplank,  8  De  Gex,  M.  &  O. 
133;  Turner  T.  Collins,  7  Ch.  App.  329. 


§    134)  CONSTRUCTIVE    FRAUD.  329 

parent  soon  after  the  child  has  attained  twenty-one.  In 
such  cases  the  court  views  the  transaction  with  jealousy, 
and  anxiously  interposes  its  protection  to  guard  the  child 
from  the  exercise  of  parental  influence."  8B  In  an  Alabama 
case,  where  the  whole  subject  of  transactions  between  per- 
sons occupying  fiduciary  relations  was  ably  discussed,  it  was 
held  that  business  transactions  between  a  father  and  his 
unmarried  daughter,  who  continues  to  reside  with  him  as  a 
member  of  his  family,  though  her  legal  disabilities  have 
been  removed,  and  she  has  attained  her  majority,  by  which 
she  assumes  a  pecuniary  obligation  for  his  benefit,  are  to 
be  regarded  in  equity  as  transactions  between  persons  oc- 
cupying a  fiduciary  relation  towards  each  other;  and  will 
not  be  sustained  or  enforced  unless  the  presumption  of  un- 
due influence  is  rebutted,  and  it  is  shown  that  the  daughter 
acted  with  full  knowledge  of  the  facts,  and  had  independent 
legal  advice.8' 

Other  Cases. 

The  foregoing  illustrations  do  not,  by  any  means,  ex- 
haust the  list  of  cases  in  which  fraud  and  undue  influence 
is  presumed  by  reason  of  the  fiduciary  relations  between 
the  parties.  Promoters  and  officers  of  corporations  occupy 
confidential  relations  towards  the  corporation  and  the  stock- 
holders, and  they  are  governed  by  the  rules  applicable  to 
trustees  generally.87  And  the  same  is  true  as  to  executors 
and  administrators,88  partners,89  and  husbands  and  wives.40 
Courts  of  equity  have  always  been  careful  not  to  fetter  this 
useful  jurisdiction  by  defining  the  exact  limits  of  its  exist- 
ence.0 

»e  Baker  v., Bradley,  7  De  Gex,  M.  &  G.  597. 

««  N7oble's  Adm'r  v.  Moses,  74  Ala.  604. 

•  T  Aberdeen  Ry.  Co.  v.  Blakie,  1  Macq.  H.  L.  Cas.  461;  Thomas 
T.  Railroad  Co.,  109  U  S.  522,  3  Sup.  Ct  315,  27  L.  Ed,  1018;  Hun- 
son  v.  Railroad  Co.,  103  N.  Y.  58,  8  N.  E.  355;  Parker  v.  Nickerson, 
112  Mass.  195;  Erlanger  v.  Phosphate  Co.,  3  App.  Cas.  1218,  1236. 

ss  ives  v.  Ashley,  97  Mass.  198;  Green  v.  Sargeant,  23  Vt  466,  56 
Am.  Dec.  88. 

»»  Simons  v.  Mining  Co.,  61  Pa.  202,  100  Am.  Dec.  628;  Wheeler 
T.  Sage,  1  WalL  518,  17  L.  Ed.  646;  Bowman  v.  Patrick  (C.  C.)  36 
Fed.  138. 

*o  Shea  v.  Shea,  121  Pa,  302,  15  All.  629;  Bartlett  v.  Bartlett,  15 
Neb.  503,  19  N.  W.  691;  Brison  v'.  Brison,  75  Cal.  525,  17  Pac.  689, 
7  Am.  St.  Rep.  189;  Farmer's  Ex'rs  v.  Farmer,  39  N.  J.  Eq.  211. 

*i  Tate  v.  Williamson,  2  Ch.  App.  55. 


330       GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

SAME— GIFTS  BETWEEN  PERSONS  IN  FIDUCIARY 
RELATIONSHIP. 

185.  A  gift  inter  vivos  to  one  in  a  fiduciary  rela- 
tion -with  the  donor  is  regarded  -with  even 
greater  suspicion  than  a  contract  ebtween 
such  persons.  The  donee  must  rebut  the 
presumption  of  fraud  by  showing  that  the 
gift  was  not  the  result  of  undue  influence; 
that  it  was  the  free,  voluntary,  and  well- 
understood  act  of  the  donor;  and,  under  the 
English  rule,  that  he  had  independent  ad- 
vice in  the  matter. 

In  discussing  the  subject  of  contracts  between  persons  in 
fiduciary  relations,  it  was  stated  that  the  payment  of  a  fair 
and  adequate  price  was  one  of  the  facts  which  must  appear 
in  order  to  sustain  the  transaction.  It  is  apparent  that  a 
gift  to  a  person  in  a  fiduciary  relation  is  a  transaction  which 
should  be  scrutinized  much  more  closely,  and,  as  has  been 
said,  "A  court  of  equity  will  weigh  every  such  transaction 
with  golden  scales."  *  Independent  of  the  existence  of  the 
fiduciary  relation,  it  is  a  principle  to  be  universally  observed 
in  a  court  of  equity  that,  where  one  devests  himself  of  his 
estate  without  receiving  an  equivalent,  it  is  incumbent  upon 
the  person  who  receives  or  profits  by  the  gift  to  give  such 
an  account  of  the  transaction  as  will  satisfy  a  chancellor 
that  the  donor  was  of  sound  mind,  and  had  a  full  and  ac- 
curate understanding  of  the  nature  of  the  act,  and  the  con- 
sequences that  it  would  produce.8  Much  more  may  be  re- 
quired of  the  donee  when  a  fiduciary  relation  exists.  He 
may  be  compelled  to  show  that  he  did  not  induce  or  prompt 
the  act,  and  that  it  was  the  spontaneous  and  unforced 
growth  of  the  donor's  mind.  If  such  evidence  be  not  ad- 

|  135.  *  Wright  v.  Vanderplank,  8  De  Gex,  M.  &  G.  137;  Hu- 
fuenin  v.  Baseley,  14  Ves.  273,  2  White  &  T.  Lead.  Cas.  Eq.  (4th 
Am.  Ed.)  1156. 

a  Phillipson  v.  Kerry,  32  Beav.  628;  Courts  v.  Acworth,  L.  R.  8 
Eq.  .">8:  Russell's  Appeal,  75  Pa.  2(51);  Tyler  v.  Gardiner,  35  N.  Y. 
550;  Couuut  v.  Jackson,  10  Vt  335,  352. 


§    135)  CONSTRUCTIVE    FRAUD.  331 

duced,  and  the  gift  is  out  of  proportion  with  the  donor's 
means,  or  will  be  prejudicial  to  those  who  have  a  paramount 
claim  to  his  bounty,  it  will  be  inferred,  in  equity,  that  it  is 
the  result  of  undue  influence,  although  there  may  be  no 
direct  proof.8 

The  modern  rule  in  England  is  that  such  a  gift  will  not 
be  sustained  unless  the  donor  had  competent  and  independ- 
ent advice  in  the  matter.4  But  in  our  courts  all  that  seems 
necessary  is  to  show  the  absence  of  undue  influence,  and 
full  knowledge  by  the  donor  of  all  the  facts,  and  of  the 
nature  and  effect  of  the  transfer.8  If  these  things  appear, 
the  gift  will  be  sustained,  for  there  is  no  rule  of  law  which 
prohibits  a  man  from  making  a  voluntary  disposition  of  his 
property  during  his  lifetime. 

As  to  the  persons  within  the  operation  of  the  principle, 
it  may  be  stated  that  any  relationship  which  raises  a  pre- 
sumption against  the  fairness  of  a  contract  necessarily  does 
the  same  with  respect  to  a  gift.  Donations  from  cestui 
que  trust  to  trustee,6  from  principal  to  agent,7  from  client 
to  attorney,8  from  ward  to  guardian,9  from  child  to  parent,10 
are  all  presumptively  invalid.  It  has  been  held  that  undue 

»  Brooke  v.  Berry,  2  Gill  (Md.)  83,  100;  Rhodes  v.  Bate,  1  Ch.  App. 
252,  261;  Bergen  v.  Udall,  31  Barb.  (N.  Y.)  9,  34;  Lee  r.  Pearce, 
68  N.  C.  76;  Long  v.  Mulford,  17  Ohio  St  484,  505,  93  Am.  Dec.  638; 
Eoss  v.  Conway,  92  Cal.  632,  28  Pac.  785. 

*  Rhodes  v.  Bate,  1  Ch.  App.  252;    Smith  v.  Kay,  7  H.  L.  Cas.  772. 

e  Ralston  v.  Turpin,  129  U.  S.  675,  9  Sup.  Ct.  420,  32  L.  Ed.  747; 
Soberanes  v.  Soberanes,  97  Cal.  140,  31  Pac.  910;  Sanfley  v.  Jackson, 
16  Tex.  579;  Boyd  v.  De  La  Montagnie,  73  N.  Y.  498,  502,  29  Am. 
Rep.  197.  Same  rule  applied  to  wills,  Garvin's  Adm'r  v.  Williams, 
44  Mo.  465,  100  Am.  Dec.  314. 

«  Hatch  v.  Hatch,  9  Ves.  292. 

T  Ralston  v,  Turpin,  129  U.  S.  675,  9  Sup.  Ot.  420,  32  L.  Ed.  747; 
Hall  v.  Knappenberger  (Mo.  Sup.)  6  S.  W.  381;  Hobday  v.  Peters, 
28  Beav.  349. 

s  Nesbit  v.  Lockman,  34  N.  Y.  167;  In  re  Greenfield's  Estate,  14 
Pa.  489.  In  England  a  gift  to  an  attorney,  made  by  a  client  pend- 
ing suit,  will  not  be  sustained,  unless  the  client  had  independent  pro- 
fessional advice.  Morgan  v.  Minett,  6  Ch.  Div.  638. 

»  Ashton  v.  Thompson,  32  Minn.  25,  18  N.  W.  918;  Fish  v.  Miller, 
1  Hoff.  Ch.  (N.  Y.)  267;  Everitt  v.  Everitt,  L.  R.  10  Eq.  405;  Hylton 
V.  Hylton,  2  Ves.  Sr.  547,  549. 

lowhitridge  v.  Whitridge,  76  Md.  54,  24  Atl.  645;  Baldock  v. 
Johnson,  14  Or.  542,  13  Pac.  434;  Taylor  v.  Taylor,  8  How.  183,  12 
L.  Ed.  1040;  Baker  v.  Bradley,  7  De  Gex,  M.  &  G.  597;  Wright  v. 
8  De  Gex,  M.  &  G.  135,  146. 


332  GROUNDS    OF   EQUITABLE   RELIEF — FRAUD.          (Ch.    IS 

influence  is  not  to  be  inferred  from  the  relation  of  parent 
and  child,  where  the  gift  is  from  the  parent  to  the  child;11 
but  where  the  parent  is  of  great  age,  or  is  enfeebled  by 
disease,  and  conveys  his  entire  estate  to  one  child,  to  the 
exclusion  of  other  children  dependent  on  his  bounty,  the 
burden  is  unquestionably  on  the  donee  to  show  that  the 
gift  was  made  freely  and  voluntarily,  and  with  full  knowl- 
edge of  all  the  facts,  and  with  a  perfect  understanding  of 
the  effects  of  the  transfer.1* 

In  addition  to  the  foregoing  cases,  the  relation  between 
a  physician  and  his  patient  is  sufficient  to  support  a  claim 
for  relief  against  a  voluntary  gift,  on  the  ground  of  undue 
influence.1*  A  clergyman  or  other  spiritual  adviser  is  also 
within  the  principle ; 14  and  so  is  a  professor  of  spiritualism, 
with  respect  to  a  believer  in  his  art.15  Gifts  by  a  wife  to 
her  husband  are  within  the  scope  and  application  of  the 
rule ; x*  and  a  gift  from  a  woman  to  her  successful  suitor 
will  be  subjected  to  careful  scrutiny,  and  it  will  not  be  sus- 
tained unless  the  suitor  can  show  that  it  was  made  without 
undue  solicitation  or  pressure.11 

«  Millican  v.  Millican,  24  Tex.  446. 

«  Whelan  v.  Whelan,  3  Cow.  (N.  Y.)  637;  Todd  T.  Grove,  33  Md. 
194;  Highberger  v.  Stiffler,  21  Md.  352,  83  Am.  Dec.  593;  Soberanes 
T.  Soberanes,  97  Cal.  140,  31  Pac.  910. 

i»  Dent  v.  Bennett,  4  Mylne  &  C.  269;  Woodbury  v.  Woodbury, 
141  Mass.  329,  5  N.  E.  275.  The  relationship  of  physician  and  pa- 
tient does  not  per  se  prevent  a  physician  from  accepting  a  gift  from 
bis  patient  Doggett  v.  Lane,  12  Mo.  215;  Audenreid's  Appeal,  89 
Pa.  114. 

i«  Ford  v.  Hennessy,  70  Mo.  580;  Ross  v.  Con  way,  92  Cal.  632,  28 
Pac.  785;  Nachtreib  v.  Harmony  Settlement,  3  Wall.  Jr.  66,  Fed. 
Cas.  No.  10,003;  Huguenin  v.  Baseley,  14  Ves.  275,  2  White  &  T. 
Lead.  Cas.  Eq.  (4th  Am.  Ed.)  1156. 

i«  Lyon  v.  Home,  L.  R.  6  Eq.  655. 

«  Boyd  v.  De  La  Montagnie,  73  N.  T.  498,  502,  29  Am.  Rep.  197; 
Stiles  v.  Stiles,  14  Mich.  72;  Hollis  v.  Francois,  5  Tex.  195,  51  Am. 
Dec.  760;  Campbell's  Appeal,  80  Pa,  298;  Smyley  v.  Reese,  53  Ala. 
89,  25  Am.  Rep.  598;  Scarborough  v.  Watklns,  9  B.  MOD.  (Ky.)  540. 

IT  page  y.  Home,  11  Bear.  227;   Cobbett  v.  Brock,  20  Beav.  524. 


§    136)  CONSTRUCTIVE   FRAUD.  333 

SAME— RATIFICATION,  CONFIRMATION,  OE 
ACQUIESCENCE. 

138.  A  contract  or  other  transaction  constructively 
fraudulent  because  of  the  confidential  rela- 
tion of  the  parties,  or  for  any  other  reason, 
may  be  made  valid  and  effectual  by 

(a)  Ratification  and  confirmation  thereof  by  the 

party  injuriously  affected  thereby. 

(b)  Acquiescence;  that  is,  recognition  of  the  ex- 

istence of  the  gift  or  contract,  and  the  per- 
formance of  some  act  to  carry  it  into  effect. 

(c)  Lapse  of  time,  without  taking  some  action  to 

disavow  the  gift  or  contract. 

Ratification  and  Confirmation. 

As  a  general  rule,  contracts  which  are  void  because  un- 
lawful cannot  be  made  valid  by  any  act  of  either  party. 
But,  where  only  the  rights  of  the  parties  themselves  are 
concerned,  a  contract  which  is  voidable  because  construc- 
tively fraudulent  may  be  ratified  and  confirmed,  and  thus 
made  valid.  But  the  party  who  is  entitled  to  equitable  re- 
lief against  a  fraudulent  transaction  must  have  full  knowl- 
edge of  all  material  facts  connected  with  the  transaction, 
and  must  either  be  aware  of  his  rights  to  impeach  such 
transaction,  or  have  had  an  opportunity  by  the  exercise  of 
reasonable  diligence  to  become  aware  of  such  rights,  to 
make  his  actions  or  words  in  ratification  of  a  voidable  trans- 
action binding  upon  him.  It  must  also  appear  that  such 
ratification  was  accomplished  free  from  the  undue  influence 
of  the  other  party.1  If  the  parties  still  continue  in  the 
same  relationship,  or  there  exists  the  same  undue  influence, 
or  if  the  act  of  confirmation  is  a  continuation  of  the  orig- 
inal transaction,  no  ratification  or  confirmation,  however 
formal,  or  by  whatever  acts  or  words,  will  be  effectual  to 
remove  the  taint  of  fraud.* 

§  136.  i  Kerby  v.  Kerby,  57  Md.  345;  Crooks  v.  Nlppolt,  44  Minn. 
239,  46  N.  W.  349;  Dobson  v.  Racey,  8  N.  Y.  216;  Pearsoll  T.  Chapin, 
44  Pa.  9. 

*  Pom.  Eq.  Jur.  §  964. 


334        GROUNDS  OF  EQUITABLE  RELIEF FRADD.    (Ch.  13 

Acquiescence. 

A  party  entitled  to  relief  against  a  contract  tainted  with 
fraud  may  lose  the  right  thereto  by  acquiescence ;  as,  where 
the  party  treats  the  contract  as  binding,  after  he  has  dis- 
covered that  he  was  drawn  into  it  by  fraud,  he  will  be  deemed 
to  have  waived  the  right  to  treat  it  as  invalid.8  Mr.  Pomeroy 
says  that  "acquiescence  is  some  act,  not  deliberately  in- 
tended to  ratify  a  former  transaction  known  to  be  voidable, 
but  recognizing  the  transaction  as  existing,  and  intended, 
in  some  extent  at  least,  to  carry  it  into  effect,  and  to  ob- 
tain or  claim  the  benefits  resulting  from  it."  * 

The  doctrine  seems  to  be  based  upon  the  theory  that, 
where  a  person  has  done  something  to  carry  a  contract  into 
effect,  and  sought  or  taken  the  benefits  thereof,  although 
only  partially,  he  cannot  afterwards  repudiate  the  transac- 
tion, and  set  up  its  voidability.  Acquiescence  is  not,  how- 
ever, a  bar  to  relief,  unless  it  appear  that  the  defrauded 
party  had  knowledge  of  the  fraud,  and  that  he  did  not  con- 
tinue under  the  undue  influence  of  the  other  party,  and 
was  perfectly  free  to  act." 

Lapse  of  Time. 

Delay  in  repudiating  or  rescinding  a  fraudulent  contract 
after  discovery  of  the  fraud,  while  not  necessarily  acquies- 
cence, will  ordinarily  defeat  the  remedy  of  the  defrauded 
party.'  What  constitutes  an  unreasonable  delay,  such  as 
would  prevent  the  granting  of  equitable  relief,  is  to  be  de- 
termined by  the  facts  in  each  case. 

»  Grymes  v.  Sanders,  93  U.  S.  55,  23  L.  Ed.  798,  3  Keener,  Eq.  Gas. 
175;  Hunt  v.  Hardwick,  68  Ga.  100;  Seavey  v.  Potter,  121  Mass. 
297;  Montgomery  v.  Pickering,  116  Mass.  227;  HImes  v.  Langley, 
85  Ind.  77;  Dunks  v.  Fuller,  32  Mich.  242.  The  fact  that  the  de- 
frauded party  has  treated  the  property  as1  his  own  before  discover- 
ing the  fraud  Is  nothing,  if  he  has  not  thus  prevented  himself  from 
returning  it.  Brophy  v.  Lawler,  107  I1L  284. 

«  Pom.  Eq.  Jur.  §  965. 

•  Kilpatrlck  v.  Benson,  81  Ala.  464,  1  South.  188;    Maulfair'g  Ap- 
peal, 110  Pa.  402,  2  Atl.  530;    Borland  v.  Thornton,  12  CaL  440;   Mc- 
Naughton  v.  Partridge,  11  Ohio,  223,  38  Am.  Dec.  731. 

•  Pryor  v.  Foster,  130  N.  I.  171.  29  N.  B.  123;   Schlffer  r.  Dletz, 
83  N.  Y.  800, 


§    140)  CONSTRUCTIVE    FRAUD.  835 

SAME— FRAUD  UPON  THIRD  PERSONS  NOT  PARTIES 
TO  THE  CONTRACT. 

137.  Not  only  shall  parties  to  a   contract  act  in 

good  faith  as  between  themselves,  but  they 
shall  not  act  in  bad  faith  in  respect  to  other 
persons  who  stand  in  such  relations  to 
either  as  to  be  affected  by  the  transaction 
or  its  consequences.1 

138.  This  class  of  frauds  embraces  those  -which  do 

not  deceive  the  parties  to  the  contract,  but 
affect  injuriously  the  interests  of  third  per- 
sons. 

139.  Such  frauds  may  be  either  (1)  upon  creditors, 

(2)  upon  subsequent  purchasers,  (3)  upon 
marital  rights,  or  (4)  upon  powers. 

Under  the  foregoing  divisions  of  this  subject,  the  cases 
considered  were  those  in  which  one  of  the  parties  to  a  con- 
tract has  been  injuriously  affected  by  the  fraud  of  the  other, 
and  has  sought  to  be  relieved  against  such  fraud.  The 
questions  now  to  be  considered  arise  where  a  third  person, 
not  a  party  to  the  transaction,  assails  it  for  collusion  be- 
tween the  parties,  resulting  in  prejudice  or  loss  to  him. 

SAME— FRAUDS  UPON  CREDITORS. 

140.  Frauds  upon  creditors  may  be  treated  under 

the'  following  heads: 

(a)  Frauds  in  compositions  with  creditors. 

(b)  Fraudulent  conveyances. 

fi  137-139.     i  Lord  Hardwicke  in  Earl  of  Chesterfield  T.  Ji 
•  Yea.  Sr.  156.  157;   Wallis  T.  Duke  of  Portland,  3  Yea.  502. 


336        GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 


SAME— COMPOSITIONS  WITH  CREDITORS. 

141.  A  composition  by  a  debtor  with  his  creditors, 
under  -which  they  agree  to  accept  a  part  of 
their  debts  in  satisfaction  of  the  -whole,  is 
based  upon  the  principle  that  all  the  credi- 
tors shall  stand  on  an  equal  footing,  and 
observe  good  faith  towards  each  other  ;  and 
therefore  any  secret  arrangement  between 
the  debtor  and  a  particular  creditor,  -where- 
by he  is  placed  in  a  more  favored  position 
than  the  others,  is  a  fraud  on  them,  and 
renders  the  composition  agreement  void- 
able.1 

Where  a  secret  preference  is  thus  given  one  of  the  cred- 
itors, the  others  have  the  right  to  rescind  the  composition 
agreement,  and  recover  the  full  amount  of  their  debts.2 
On  the  other  hand,  the  creditor  who  is  the  beneficiary  of 
the  secret  agreement  cannot  enforce  it  against  the  debtor ; ' 
and  it  has  been  held  that  the  latter  may  recover  money 
paid  by  him  to  such  creditor  under  the  agreement.* 

f  141.  »  Cullingworth  v.  Loyd,  2  Beav.  385;  Leicester  y.  Rose,  4 
East,  372;  Ramsdell  v.  Edgarton,  8  Mete.  (Mass.)  227,  41  Am.  Dec. 
603;  Lawrence  v.  Clark,  36  N.  Y.  128;  Willis  v.  Morris,  63  Tex.  458. 
61  Am.  Rep.  655. 

»  Kullman  v.  Greenebaum,  92  Cal.  403,  28  Pac.  674,  27  Am.  St 
Rep.  150.  Subsequent  creditors,  not  parties  to  the  composition 
agreement,  cannot  attack  It.  Guggenheimer  v.  Groeschel.  23  S.  0. 
274,  55  Am.  Rep.  15. 

•  Jackman  v.  Mitchell,  13  Ves.  581;   Sternburg  v.  Bowman,  103 
Mass.  325;   Pay  v.  Fay,  121  Mass.  661;   Lawrence  v.  Clark,  36  N.  Y. 
128. 

*  Mare  r.  Sand  ford,  1  Glff.  288.    This  proposition  la  doubted  in 
Golinger  r.  Earle,  82  N.  Y.  395.  on  the  ground  that  the  parties  are 
In  par!  dellcto. 


§    144)  CONSTUUCTIVE    FRAUD.  837 

SAME— FRAUDULENT  CONVEYANCES. 

142.  A  fraudulent   conveyance  is  one  the  object, 

tendency,  or  effect  of  which  is  to  defraud  an- 
other, or  the  intent  of  which  is  to  avoid  some 
duty  or  debt  due  by  or  incumbent  on  the 
party  making  it.1 

143.  To  render  a  conveyance  fraudulent  there  must 

be: 

(a)  A  creditor  to  be  defrauded. 

(b)  An  intention  to  defraud. 

(c)  A  transfer  of  the  property.* 

Transfers  of  property  made  with  intent  to  defraud  cred- 
itors were  void  at  common  law,8  on  the  principle  that  a 
man  must  be  just  before  he  is  generous ;  *  but  statutes  were 
enacted  at  an  early  day  in  England  with  a  view  of  affirm- 
ing the  rule,  and  carrying  the  principle  of  the  common  law 
more  fully  into  effect.  The  principle  of  these  was  the  stat- 
ute of  13  Eliz.  c.  5,  which  declared  all  gifts,  grants,  and  con- 
veyances of  goods,  chattels,  or  lands  made  with  an  intent 
to  hinder,  delay,  or  defraud  creditors  void  as  against  the 
person  to  whom  such  frauds  would  be  prejudicial ;  but  con- 
veyances made  bona  fide,  on  good  consideration,  and  with- 
out notice  of  any  fraud  or  collusion,  were  excepted  from  the 
operation  of  the  statute.  This  statute  has  been  universally 
adopted  in  this  country  as  the  basis  of  our  jurisprudence 
on  the  subject.5 

SAME— CREDITOR  TO  BE  DEFRAUDED. 

144.  Before  a  creditor  can  assail  a  conveyance  in 

equity,  he  must  have  reduced  his  debt  to 
judgment,  or  have  acquired  a  lien  on  specific 

If  142,  143.     iBouv.  Law  Diet;   2  Kent,  Comm.  440. 
»  Wait,  Fraud.  Conv.  §  15;    Hoyt  v.  Godfrey,  88  N.  Y.  669. 
«  Twyne's  Case,  3  Coke,  80a,  1  Smith,  Lead.  Cas.  33;    Cadogan  v. 
Kennett,  1  Cowp.  432;    Clements  v.  Moore,  6  Wall.  312,  18  L.  Ed.  786. 

*  Planters'  &  Merchants'  Bank  v.  Walker,  7  Ala.  946. 

•  Story,  Eq.  Jur.  §  353;    Pom.  Eq.  Jur.  §  968. 

EATON.EQ.— 22 


338        GROUNDS  OF  EQUITABLE  BELIEF FRAUD.    (Ch.  13 

property,  or  placed  himself  in  a  position  to 
obtain  one  on  the  avoidance  of  the  transfer.1 
145.  It  is  not  necessary,  however,  that  his  demand 
be  certain  and  liquidated  at  the  time  of  the 
transfer,  or  that  it  be  then  in  existence;  for 
a  subsequent  creditor  may  avoid  a  fraudu. 
lent  conveyance,  as  well  as  an  antecedent  or 
existing  creditor. 

Courts  of  equity  are  not  tribunals  for  the  collection  of 
debts,2  and  therefore,  before  they  will  entertain  jurisdiction 
of  an  action  to  set  aside  a  debtor's  conveyance,  the  debt 
must  be  established  by  some  judicial  proceeding,  and  it 
must  generally  be  shown  that  the  legal  means  for  its  col- 
lection have  been  exhausted.8  If  the  object  of  the  suit  be 
to  reach  personal  property  or  equitable  assets,  it  must  ap- 
pear that  an  execution  has  been  returned  unsatisfied,4  un- 
less the  property  is  not  susceptible  to  levy.8  The  demand 
need  not,  however,  be  certain  and  liquidated  at  the  time  of 
the  conveyance.  It  is  sufficient  that  the  creditor  has  a  cause 
of  action  against  the  debtor,  and  it  is  immaterial  whether 
it  arises  out  of  contract  or  out  of  tort.'  For  instance,  it 
has  been  held  that  one  who  has  a  cause  of  action  for  libel 
or  slander,7  seduction,8  breach  of  promise  to  marry,9  or 
assault  and  battery,10  is  a  creditor,  within  the  meaning  of 
the  statute. 

H  144,  145.  i  Southard  v.  Benner,  72  N.  Y.  426.  See  Bankr.  Act 
U.  S.  1898,  §  67,  subd.  f. 

»  Webster  v.  Clark,  25  Me.  314. 

«  Board  of  Public  Works  v.  Columbia  College,  17  Wall.  530,  21  L. 
Ed.  G87;  Powell  v.  Howell,  63  N.  C.  284;  Fox  v.  Moyer,  54  N.  Y.  128. 

•  Baxter  v.  Moses,  77  Me.  465,  1  All.  350,  52  Am.  Rep.  783;    MoEl- 
wain  v.  Willis,  9  Wend.  (N.  Y.)  548;    Yasser  v.  Henderson,  40  Miss. 
619,  90  Am.  Dec.  351;   Newman  v.  Wllletts,  52  111.  98. 

•  Snodgrass  v.  Andrews,  30  Miss.  472,  64  Am.  Dec.  169. 

•  Bishop  v.  Redmond,  83  Ind.  157;    Weir  v.  Day,  57  Iowa,  84,  10 
N.  W.  304;    Damon  v.   Bryant,  2  Pick.   (Mass.)  411;    Bongard  v. 
Block,  81  111.  186,  25  Am.  Rep.  276. 

T  Cooke  v.  Cooke,  43  Md.  522;    Hall  v.  Sands,  52  Me.  855. 

•  Hunslnger  v.  Hofer,  110  Ind.  390,  11  N.  E.  463. 

t  Hoffman  v.  Junk,  51  Wis.  (513,  8  N.  W.  493;  McVeigh  7.  Eltenour. 
40  Ohio  St  107;    Burton  v.  Mill,  78  Va.  468. 
»«  Martin  v.  Walker.  12  Huu  (N.  Y.)  46. 


§146)  CONSTRUCTIVE   FRAUD.  339 

Nor  need  the  debt  be  in  existence  at  the  time  of  the  con- 
veyance. Such  conveyance  may  be  avoided  by  subsequent 
creditors  if  made  in  contemplation  of  future  indebtedness.11 
There  is  this  distinction,  however,  between  the  rights  of 
antecedent  and  existing  creditors,  and  those  of  subsequent 
creditors :  A  voluntary  conveyance  is  presumptively  fraud- 
ulent as  against  the  former,12  while  the  burden  rests  upon 
the  latter  to  show  that  the  conveyance  was  executed  as  a 
Cover  for  future  schemes  of  fraud.1* 


SAME— INTENT  TO  DEFRAUD. 

148.  To  render  a  conveyance  voidable,  there  must 
be  an  intent,  participated  in  by  both  the 
grantor  and  the  grantee,  to  defraud  the 
grantor's  creditors,  except  where  the  con- 
veyance is  voluntary,  when  the  grantor's 
fraudulent  intent  alone  will  be  sufficient  to 
avoid  it. 

The  intent  to  hinder,  delay,  or  defraud  creditors  is  the 
essential  and  poisonous  element  in  the  transaction.1  "In- 
tent or  intention  is  an  emotion  or  operation  of  the  mind, 
and  can  usually  be  shown  only  by  acts  or  declarations; 
and,  as  acts  speak  louder  than  words,  if  a  party  does  one 
act  which  must  defraud  another,  his  declaring  that  he  did 
not  by  the  act  intend  to  defraud  is  weighed  down  by  the 

"Case  v.  Phelps,  39  N.  Y.  164;  Day  v.  Cooley,  118  Mass.  527; 
Mullen  v.  Wilson,  44  Pa.  413,  84  Am.  Dec.  461;  Smith  v.  Vodges, 
92  U.  S.  183,  23  L.  Ed.  481. 

12  Lerow  v.  Wllmarth,  9  Allen  (Mass.)  386;  Parish  v.  Murphree, 
13  How.  92,  14  L.  Ed.  65;  Babcock  v.  Eckler,  24  N.  Y.  625;  Jenkins 
T.  Clement,  1  Harp.  Eq.  (S.  C.)  72,  14  Am.  Dec.  705,  note.  Some 
cases  hold  that  a  voluntary  conveyance  Is  not  only  presumptively, 
but  absolutely,  void  as  against  existing  creditors.  Reade  v.  Liv- 
ingston, 3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520;  Freeman  v.  Pope, 
L.  R.  9  Eq.  211. 

«  Horbach  v.  Hill,  112  U.  S.  149,  5  Sup.  Ct  81,  28  L.  Ed.  670; 
Teed  v.  Valentine,  65  N.  Y.  474;  Matthal  v.  Heather,  57  Md.  483. 

§  146.  i  Moore  T.  Hianant,  88  N.  C.  455;  Worthy  v.  Brady,  91  N. 
C.26& 


340        GROUNDS  OF  EQUITABLE  RELIEF FRAUD.    (Ch.  13 

evidence  of  his  own  act."  •  Since  every  man  is  presumed 
to  intend  the  natural  and  necessary  consequences  of  his 
acts,  the  absence  of  actual  or  meditated  fraud  is  not,  in  all 
cases,  decisive  in  favor  of  the  conveyance ; 8  and  therefore 
a  voluntary  conveyance,  the  natural  and  necessary  effect  of 
which  is  to  hinder,  delay,  and  defraud  creditors,  is  void- 
able by  them,  though  the  debtor  may  have  believed  he  had 
a  right  to  make  it.4  If  no  intent  existed  in  the  minds  of 
the  parties  at  the  time  a  conveyance  was  executed,  the  sub- 
sequent conduct  of  such  parties  will  not  render  the  con- 
veyance fraudulent.0  But  the  subsequent  use  of  the  prop- 
erty conveyed  in  furtherance  of  fraud  against  the  creditors 
of  the  original  grantor  will  be  evidence  that  the  conveyance 
was  made  with  an  intent  to  defraud.' 

As  a  general  rule,  a  conveyance  will  not  be  set  aside  as 
fraudulent,  and  the  title  in  the  property  of  the  grantee  viti- 
ated, unless  the  grantee  participated  in  the  intent  to  de- 
fraud, or  had  knowledge  of  the  existence  of  such  intent  or 
notice  of  some  fact  calculated  to  put  him  on  inquiry,  which, 
if  followed  up,  would  have  led  to  a  discovery  of  the  fraudu- 
lent intent.1  The  reason  for  the  existence  of  this  rule  may 
be  found  in  the  fact  that,  while  the  creditor  has  an  equity 
which  entitles  him  to  satisfaction  of  his  debt  out  of  the 
debtor's  property,  one  who  purchases  that  property  for  a 
valuable  consideration  after  that  debt  was  incurred  has  also 
an  equity  therein;  and,  although  it  is  subsequent  in  time 
to  that  of  the  creditor,  it  is  nevertheless  superior,  for  the 
obvious  reason  that  the  purchaser  has  not  trusted,  as  the 
creditor  has,  to  the  personal  responsibility  of  the  debtor, 

•  Per  Sutherland,  J.,  in  Babcock  v.  Eckler,  24  N.  Y.  632. 

»  Lukins  v.  Alrd.  6  Wall.  79,  18  L.  Ed.  750;  Kisterbock's  Appeal, 
61  Pa.  485. 

•  Potter  v.  McDowell,  31  Mo.  62. 

•  Ray  v.  Simons,  76  Ind.  150;   Hatch  v.  Smith,  5  Mass.  60;   Page 
T.  Kendrlck,  10  Mich.  300;   Weller  v.  Wayland,  17  Johns.  (N.  Y.) 
102:    McGulre  v.  Faber,  25  Pa.  436. 

•  Lynde    v.    McGregor,    13    Alien    (Mass.)    172;    Constantlne   T. 
Twelves,  29  Ala.  607. 

t  Schaungut's  Adm'r  v.  Udell,  93  Ala,  302,  9  South.  550;  Grunsky 
T.  Parlin,  110  Cal.  179,  42  Pac.  575;  Hughes  v.  Noyes,  171  111.  575,  49 
N.  E.  703;  Straight  v.  Roberts,  126  Ind.  383,  26  N.  E.  73;  Snow  v. 
Paine,  114  Mass.  520;  Eraser  v.  Passage,  63  Mich.  551,  30  N.  W. 
834;  Galle  v.  Tode,  148  N.  Y.  270.  42  N.  E.  G73.  See  Bankr.  Act  U.  S. 
§  C7,  aubd.  C. 


§    147)  CONSTRUCTIVE   FRAUD.  341 

but  has  paid  the  consideration  on  the  faith  of  the  debtor's 
actual  title  to  the  specific  property  transferred.8  The  cred- 
itor must,  therefore,  prove  a  participation  of  the  grantee 
in  the  debtor's  fraud  whenever  the  grantee  is  a  purchaser 
for  value.9  When,  however,  the  transfer  is  not  founded  on 
a  valuable  consideration,  but  is  voluntary,  the  grantee  can- 
not claim  the  advantages  which  are  accorded  purchasers ; 
and,  although  he  may  be  entirely  free  from  connivance  with 
the  grantor,  and  ignorant  of  his  fraudulent  intent,  a  cred- 
itor may  impeach  the  transfer  without  proof  that  the  gran- 
tee participated  in  the  fraudulent  intent  of  the  grantor.10 


SAME— TRANSFER  OP  PROPERTY. 

147.  Property  of  all  kinds,  real  and  personal,  legal 
and  equitable,  vested,  reversionary,  or  con- 
tingent, is  susceptible  of  fraudulent  aliena- 
tion, and  may  be  reclaimed  by  the  grantor's 
creditors.1 

LIMITATION"— But  the  subject-matter  of  the 
conveyance  must  be  something  of  value, 
out  of  which  the  creditors  might  have  real- 
ized a  part  or  all  of  their  claims.3 

The  entire  property  of  which  a  debtor  is  the  real  or  bene- 
ficial owner  constitutes  a  fund  which  is  primarily  applicable, 
to  the  fullest  extent  of  its  entire  value,  to  the  payment  of 
its  owner's  debts;  and  the  courts  will  not  allow  any  of 
that  value  to  be  withdrawn  from  such  primary  application 
if  they  can  find  any  legal  or  equitable  ground  on  which  to 

•  Seymour  r.  Wilson,  19  N.  Y.  417,  420. 

•  Prewlt  v.  Wilson.  103  U.  S.  22,  26  L.  Ed.  360;    Mehlhop  v.  Petti- 
bone,  54  Wls.  652,  11  N.  W.  553,  12  N.  W.  443;    Schroeder  v.  Walsh, 
120  111.  403,  11  N.  E.  70;   Jaeger  v.  Kelley,  52  N.  Y.  274;    Foster  T. 
Hall,  12  Pick.  (Mass.)  89. 

10  Laughton  v.  Harden,  68  Me.  213;  Marden  v.  Babcock,  2  Mete. 
(Mass.)  104;  Schaible  v.  Ardner,  98  Mich.  70,  56  N.  W.  1105;  Wer- 
ner v.  Zierfuss,  1(52  Pa.  360,  29  Atl.  737. 

§  147.    i  May,  Fraud.  Conv.  p.  17;   Wait,  Fraud.  Conv.  §§  24,  25. 

•  Hoyt  v.  Godfrey,  88  N.  Y.  669. 


342  GROUNDS    OF    EQUITABLE    RELIEF FRAUD.          (Ch.   13 

prevent  such  withdrawal.8  The  right  of  creditors  to  pur- 
sue property  fraudulently  conveyed  away  by  their  debtor 
is,  therefore,  not  limited  to  that  which  is  of  a  tangible  na- 
ture, and  which  may  be  levied  on  and  sold  under  execution, 
but  extends  to  every  species  of  property,  including  intangi- 
ble rights  and  choses  in  actions ;  *  such  as  annuities,6  royal- 
ties," and  corporate  stock.1 

Conveyance  of  Legal  Title  to  Equitable  Owner. 

Where  a  debtor  who  holds  the  legal  title  to  property,  of 
which  another  is  the  equitable  owner,  conveys  such  legal 
title  to  such  equitable  owner,  such  conveyance  will  not  be 
deemed  fraudulent  as  to  the  creditors  of  such  debtor.8  As 
where  a  husband  purchases  land  with  money  derived  from 
his  wife's  separate  estate,  and  takes  the  title  in  his  own 
name,  and  afterwards  conveys  the  property  to  his  wife,  the 
conveyance  is  not  fraudulent,  and  cannot  be  assailed  by 
his  creditors.9  But,  if  the  wife  permits  the  husband  to  ob- 
tain credit  on  the  faith  of  his  apparent  ownership,  she  may 
be  estopped  from  asserting  her  title  against  those  creditors 
of  her  husband  who  had  no  knowledge  of  her  rights  in  the 
property. 

Limitation. 

An  important  limitation  on  the  right  of  the  creditors  to 
pursue  their  debtor's  property  is  this:  The  thing  disposed 
of  must  be  of  some  value,  out  of  which  the  creditors  might 
have  realized  the  whole  or  a  part  of  their  claims.10  There- 
fore property  which  is  exempt  by  statute  from  liability  for 

»  Essay  by  Joshua  Reynolds,  Esq.,  on  "Fraudulent  Conveyances," 
quoted  In  Wait,  Fraud.  Conv.  §  24. 

«  Wait,  Fraud.  Conv.  §  24.  See  Bankr.  Act  U.  S.  1898,  f  67, 
•ubd.  e. 

•  Norcutt  v.  Dodd.  1  Craig  &  P.  100. 

•  Lord  v.  Harte.  118  Mass.  271. 

t  Bayard  v.  Hoffman,  4  Johns.  Ch.  (N.  Y.)  450.  Equitable  Interest 
In  real  estate,  see  Edmeston  v.  Lyde,  1  Paige  (N.  Y.)  641,  19  Am. 
Dec.  454. 

•  Desmond  r.  Myers,  113  Mich.  437,  71  N.  W.  877;   C.  Aultman  A 
Co.  v.  Booth,  95  Mo.  383,  8  S.  W.  742;    lauch  v.  De  Socarras,  56  N. 
J.  Eq.  538,  39  All.  370. 

•  Eads  v.  Thompson,  109  111.  87;    Lord  v.  Bishop,  101  Ind.  334; 
Dresser  T.  Zabriskie  (N.  J.  Ch.)  39  Atl.  1066;  Syracuse  Chilled  Plow 
Co.  v.  Wing,  85  N.  Y.  421. 

10  Hoyt  T.  Godfrey,  88  N.  Y.  669. 


§    148)  FRAUD   ON    MARITAL   RIGHTS.  343 

the  grantor's  debts  cannot  be  reclaimed  by  his  creditors.1* 
Neither  law  nor  equity  will  take  cognizance  of  fraudulent 
practices  that  injure  no  one.  Therefore,  regardless  of  the 
fraudulent  intent,  if  the  subject-matter  involved  in  the  trans- 
action is  of  such  a  nature  that  it  cannot  be  appropriated 
to  the  payment  of  the  amount  due  th'e  creditor,  the  con- 
veyance cannot  be  fraudulent  as  against  such  creditor.1' 

Another  exception  exists  as  to  the  personal  talents  and 
industry  of  the  debtor.  The  creditors  cannot  compel  him 
to  work,  and  hence  he  does  not  defraud  them  if  he  chooses 
to  give  away  his  services  by  working  gratuitously  for  an- 
other.1* 

FRAUD  ON  MARITAL  RIGHTS. 

148.  A  conveyance,  by  either  party  to  a  marriage 
contract,  of  his  or  her  property,  without 
the  knowledge  of  the  other,  and  with  the 
intent  of  depriving  such  other  of  the  rights 
•which  he  or  she  would  otherwise  acquire 
in  the  property  by  the  marriage,  is  a  fraud 
on,  and  may  be  avoided  by,  such  other. 

The  earlier  cases  on  this  subject  arise  where  a  woman, 
in  contemplation  of  marriage,  settled  her  real  estate  in  trust 
to  her  separate  use,  for  the  purpose  of  depriving  her  in- 
tended husband  of  the  rents  and  profits  which  devolved  on 
him  during  coverture  by  the  common  law.  But  courts  of 
equity,  though  they  were  wont  to  protect  married  women 
in  the  enjoyment  of  their  separate  estates,  held  that  such  a 
conveyance,  made  by  a  woman  pending  a  marriage  engage- 
ment, without  notice  to  her  intended  husband,  was  a  fraud 
on  the  husband's  marital  rights,  and  was  voidable  by  him 

«  O'Connor  v.  Ward,  60  Miss.  1037;  Nichols  T.  Eaton,  91  U.  S. 
726,  23  L.  Ed.  254;  Carhart  r.  Harshaw,  45  Wis.  340,  30  Am.  Rep. 
752;  Taylor  v.  Duesterberg,  109  Ind.  165,  170,  9  X.  E.  907;  Wash- 
burn  v.  Goodheart,  88  111.  229;  Rhead  v.  Hounson,  46  Mich.  243,  9 
N.  W.  267. 

12  Legro  v.  Lord,  10  Me.  161;  Smillie  v.  Swinn,  90  N.  Y.  492; 
O'Connor  v.  Ward,  60  Miss.  1025,  1037;  Howell  Bros.  Shoe  Co.  v. 
Mars.  82  Tex.  493,  17  S.  W.  370. 

is  Abbey  v.  Deyo,  44  N.  Y.  347. 


344  GROUNDS    OF   EQUITABLE    RELIEF FRAUD.          (Ch.    13 

because  affected  with  that  fraud.1  This  application  of  the 
rule  has,  of  course,  become  obsolete  since  the  enactment 
of  the  married  women's  statutes  in  the  several  states,  giv- 
ing married  women  complete  control  of  their  real  estate; 
and  the  rule  is  now  chiefly  applied  to  protect  the  inchoate 
dower  interests  of  married  women  in  real  estate  conveyed 
away  by  their  intended  husbands  in  contemplation  of  mar- 
riage,1 although  a  case  occasionally  arises  where  a  husband 
complains  of  an  alienation  by  his  wife  as  in  fraud  of  his 
inchoate  estate  by  curtesy.8  By  the  weight  of  modern  au- 
thority, mere  noncommunication  to  the  intended  spouse  of 
the  execution  of  a  deed  in  contemplation  of  marriage  is  not 
conclusive  on  the  question  of  fraud,  but  the  circumstances 
surrounding  the  case  may  be  shown ;  4  and  a  voluntary  con- 
veyance of  property  to  the  children  by  a  former  marriage 
will  be  upheld  where  no  representation  has  been  made  to 
the  intended  spouse  as  to  the  extent  of  the  grantor's  prop- 
erty, and  the  provision  for  the  children  is  reasonable,  when 
compared  with  the  balance  of  the  estate.* 

FBAUD  ON  POWERS. 

149.  The  donee  of  a  limited  power  must  execute 
it  bona  fide,  for  the  end  designed ;  other- 
wise, the  appointment  will  be  held  fraudu- 
lent and  void  in  equity. 

Where  an  owner  of  land  confers. on  another  a  power  to 
dispose  of  an  estate  therein,  the  donee  of  the  power  must 

f  148.  »  Strathinore  v.  Bowes,  1  Ves.  Jr.  22,  1  White  &  T.  Lead. 
Cas.  Eq.  (4th  Am.  Ed.)  605;  England  v.  Downs,  2  Beav.  522;  Lance 
T.  Norman,  2  Ch.  R.  79. 

»  Dearmond  v.  Dearmond,  10  Ind.  191;  Smith  v.  Smith,  6  N.  .T. 
Eq.  515;  Brown  v.  Bronson,  35  Mich.  415;  Leach  v.  Duvall,  8  Bush 
(Ky.)  201;  Kelly  T.  McGrath,  70  Ala.  75,  45  Am.  Rep.  75;  Swaine 
T.  Ferine,  5  Johns.  Ch.  (N.  Y.)  482,  9  Am.  Dec.  318;  Kline  v.  Kline, 
67  Pa,  120;  Beere  v.  Beere,  79  Iowa,  555,  44  N.  W.  809. 

»  Ferrebee  v.  Prltchard,  112  N.  C.  83,  16  S.  E.  903. 

«  Dudley  T.  Dudley,  76  Wls.  567,  45  N.  W.  602,  8  L.  R.  A.  814; 
Ohamplln  T.  Champlln,  16  R.  I.  814,  15  AU.  85;  Butler  v.  Butler,  21 
Kan.  521. 

•  Alkire  r.  Alklre,  134  Ind.  360,  32  N.  E.  573;  Klnne  r.  Webb,  4 
C.  C.  A.  170,  54  Fed.  34;  Murray  T.  Murray,  90  Ky.  1,  13  S.  W.  244. 
BL.R.A.9& 


§   149)  l-BAUD  ON   POWERS.  345 

act  with  good  faith  and  sincerity,  and  with  an  entire  and 
single  view  to  the  real  purpose  and  object  of  the  power. 
He  cannot  carry  into  execution  any  indirect  object,  or  ac- 
quire any  benefit  for  himself,  either  directly  or  indirectly.1 
Thus,  where  a  father  has  a  power  of  appointment  among 
his  children,  an  appointment  in  favor  of  one  of  them,  in 
consideration  of  a  promise  by  the  appointee  to  pay  the 
father's  debts,  is  void.2  So,  also,  an  appointment  will  be 
deemed  fraudulent  when  a  father,  having  a  power  of  raising 
portions  for  his  children,  directs  a  portion  to  be  raised 
long  before  it  is  required,  or  in  favor  of  a  sickly  child,  with 
a  view  of  acquiring  money  on  its  decease  as  next  of  kin.8 

f  149.  i  Aleyn  v.  Belchier,  1  Eden,  132,  1  White  &  T.  Lead.  Gas. 
Eq.  (4th  Am.  Ed.)  573;  Portland  v.  Topham,  11  H.  L.  Gas.  32. 

2  Farmer  v.  Martin,  2  Sim.  502;  In  re  Kirwan's  Trusts,  25  Ch.  Div. 
373. 

s  Hinchlngbroke  v.  Seymour,  1  Brown,  Oh.  395;  Wellesley  v.  Earl 
of  Mornington,  2  Kay  &  J.  143.  There  are  but  fe\v  American  cases 
on  this  subject.  The  question  of  fraudulent  executions  of  powers 
has,  however,  been  considered  in  the  following,  among  other,  cases: 
Williams'  Appeal,  73  Pa.  249;  Jackson  v.  Veeder,  11  Johns.  (N.  Y.) 
169,  171;  Haynesworth  v.  Cox,  Harp.  Eq.  (S.  C.)  117,  119;  Budington 
r.  Munson,  33  Conn.  481;  Lippincott  v.  Rldgway,  10  N.  J.  Eq.  164, 


346 


EQUITABLE    PROPERTY TRUSTS. 


(Ch.  14 


CHAPTER  XIV. 

EQUITABLE  PROPERTY— TRUSTS  GENERALLY— EXPRESS 

TRUSTS. 

150.  Definition  of  a  Trust. 

161-153.  Historical  Statement 

154.  Classification  of  Trusts. 

155.  Express  Private  Trusts. 

156.  Express  Trusts— Parties. 

157.  Who  may  be  a  Settlor. 

158.  Who  may  be  a  Trustee. 

159.  Who  may  be  a  Cestui  Que  Trust. 

160.  Property  Subject  to  Trust 
161-162.  Creation. 

163.  Language  Creating  Trust 

164-166.  Precatory  Words. 

167-169.  Enforcement  of  Voluntary  Trust!. 

170-171.  Objects  of  Trusts. 

172-174.  Executed  and  Executory  Trusts. 

175.  Active  and  Passive  Trusts. 

176-177.  Active  Trust 

178-179.  Passive  Trust 

180.  Assignment  for  Benefit  of  Creditors. 

181.  Public  or  Charitable  Trusts— Objects. 

182.  Characteristics. 

183.  Cy-pres  Doctrine. 

184.  Charitable  Trusts  In  the  United  States. 


DEFINITION  OF  A  TRUST. 

160.  A  trust  may  be  defined  as  an  obligation  tin- 
der -which  a  person  in  whom  the  legal  title 
to  property  is  vested  is  bound  in  equity  to 
deal  -with  the  beneficial  interest  therein  in 
a  particular  manner,  either  -wholly  in  favor 
of  others  or  partly  in  favor  of  others  con- 
Jointly  with  himself. 

It  is  somewhat  difficult  to  accurately  and  definitely  define 
a  trust.  The  definition  above  given  is  based  upon  that  of 
Mr.  Underhill  in  his  work  on  Trusts  and  Trustees.1  The 

|  150.     *  Underh.  Trusts,  p.  1. 


§§    151-153)  HISTORICAL    STATEMENT.  347 

late  Judge  Josiah  Smith,  in  his  Manual  of  Equity,  has  de- 
fined a  trust  as  "a  beneficial  interest  in,  or  a  beneficial  own- 
ership of,  real  or  personal  property,  distinct  from  the  legal 
ownership  thereof."  2  This  definition  is  that  used  by  Jus- 
tice Story,8  and  is  similar  to  that  contained  in  Spence's 
Jurisdiction  of  the  Court  of  Chancery,  and  followed  in 
Snell's  Principles  of  Equity.  But  it  is  suggested  by  Mr. 
Underhill  that  the  definition  employed  by  all  these  eminent 
writers  is  not  the  definition  of  a  trust,  but  rather  of  the 
beneficial  interest  or  property  of  persons  in  whose  favor  a 
trust  is  created.  This  same  objection  may  be  made  to  the 
definition  of  Mr.  Bispham,  who  defines  a  trust  as  "the  right, 
enforceable  only  in  equity,  to  the  beneficial  enjoyment  of 
property  of  which  the  legal  title  is  in  another."  *  But  both 
of  these  definitions  are  valuable  in  emphasizing  the  cardinal 
idea  of  the  co-existence  of  the  legal  title  in  one  person  and 
the  beneficial  ownership  or  equitable  title  in  another. 

HISTORICAL  STATEMENT. 

151.  There  is  a  suggestion  of  the  trust,  as  known  to 
us,  in  the  Roman  fidei-commissum,  although 
it  cannot  be  correctly  said  that  the  entire 
equity  jurisprudence  of  uses  and  trusts  was 
derived  from  the  Roman  law. 

162.  Uses    and   trusts   were   probably  first  intro- 

duced into  the  English  law  to  evade  the 
statutes  of  mortmain,  which  prohibited  lands 
from  being  granted  to  religious  houses. 

163.  The  system  of  uses  and  trusts  was  perpetuat- 

ed as  a  means  of  relief  against  the  hard- 
ships and  restrictions  incident  to  the  feudal 
tenure  of  land. 

It  was  a  rule  of  the  Roman  law  that  a  testator  could 
not  name  a  devisee  to  succeed  the  first  devisee  of  his  prop- 
erty. The  devise  was  absolute  in  the  devisee  first  named, 

*  Smith,  Man.  Eq.  §  224.  s  Story,  Eq.  Jur.  §  964. 

*  Bisp.  Eq.  p.  73, 


848  EQUITABLE    PROPERTY TRUSTS.  (Ch.  14 

and  the  legal  title  and  beneficial  ownership  of  the  property 
were  vested  in  him.  In  other  words,  the  testator  could 
not  control,  by  direction  in  his  will,  the  use  and  enjoyment 
of  his  property  after  his  death.  The  Roman  law  restricted 
the  Roman  citizen  in  his  choice  of  a  testamentary  heir. 
He  could  not  devise  to  an  alien,  a  posthumous  child  not 
belonging  to  his  family,  nor,  in  certain  cases,  to  a  woman. 
The  only  manner  in  which  these  restrictions  could  be  evaded 
was  by  a  devise  of  his  property  to  one  entitled  to  take, 
and  trust  him  to  dispose  of  such  property  according  to  his 
directions.  This  trust  was  called  "fidei-commissum,"  the 
heir  or  trustee  the  "fiduciarius,"  and  the  beneficiary  the 
"fidei-commissarius."  *  At  first  there  was  no  legal  method 
of  enforcing  the  testator's  direction,  but  its  fulfillment  was 
left  to  the  honor  of  the  heir.  But  later,  by  the  intervention 
of  the  Erriperor  Augustus,  the  consuls  interposed  their  au- 
thority, and  enforced  the  trust.2  The  authority  of  the  con- 
suls was  favored  as  just  by  public  opinion,  and  it  gradually 
assumed  the  character  of  a  regular  jurisdiction,  and  fidei- 
commissa  grew  into  such  favor  that  soon  a  special  praetor 
was  appointed  to  adjudicate  in  these  cases.1 

It  is  not  intended  to  carry  the  idea  that  the  trust  of  the 
English  law  is  identical  with  that  of  the  Roman  fidei-com- 
missum. There  is  evidently  a  clear  distinction  between  the 
two.4  In  the  first  place,  it  must  be  noted  that  a  fidei-commis- 
sum was  but  a  method  of  carrying  out  the  direction  of  the  tes- 
tator as  to  the  ultimate  disposition  of  his  property.  There 
was  no  separation  of  the  legal  title  from  the  beneficial  enjoy- 
ment. The  devisee  first  named  was  the  absolute  owner  as 
long  as  he  held  the  title.  He  was  but  the  means  whereby 
the  estate  was  to  descend  to  the  person  upon  whom  the 
testator  desired  to  bestow  his  property.  At  the  time  men- 
tioned in  the  testator's  will  he  was  to  deliver  over  the  in- 
heritance. But  the  trust  of  the  English  law  is  based  upon 

H  151-153.     »  Pom.  Eq.  Jur.  §  976. 

•  Just.  lost  lib.  II.  tit  23,  8  1. 

•  Just  lost  lib.  II.  tit  23,  5  2. 

«  McDonogb's  Ex'rs  v.  Murdoch,  15  How.  887,  14  L.  Ed.  732,  which 
was  a  case  arising  under  tbe  Louisiana  Code,  where  the  question 
arose  whether  a  "trust"  was  within  the  language  of  that  Code  pro- 
hibiting substitutions  and  fidel  commissa,  and  it  was  held  that  It 
was  not. 


§§    151-153)  HISTORICAL   STATEMENT.  349 

the  separation  of  a  perfect  ownership  into  a  legal  title  vested 
in  one  person  and  a  beneficial  interest  or  equitable  title 
vested  in  another. 

It  is  probable,  however,  that  the  English  clergy,  in  their 
effort  to  evade  the  effect  of  the  statutes  of  mortmain,  which 
were  enacted  to  prohibit  the  accumulation  of  lands  in  the 
hands  of  religious  houses  and  corporations,  adopted  the 
method  suggested  by  the  fidei-commissum  of  the  Roman 
law,  and  developed  the  practice  of  a  conveyance  of  lands  to 
one  person  for  the  use  or  benefit  of  another  person  or  a  cor- 
poration. 

One  of  the  important  reasons  for  the  perpetuation  of  the 
system  of  uses  is  to  be  found  in  the  hardships  and  restric- 
tions incident  to  the  feudal  tenure  of  land.  Absolute  own- 
ership in  land  was  never  recognized  by  the  common  law. 
The  person  in  possession  or  enjoyment  was  vested  only  with 
a  legal  estate  or  interest,  of  greater  or  less  extent  or  dura- 
tion, subject  to  the  right  of  a  superior  lord,  or,  at  any  rate, 
of  the  crown,  as  chief  and  paramount  lord  of  all  the  soil 
of  the  country.* 

During  a  period  of  500  years,  from  the  days  of  the  Nor- 
man Conquest  to  the  time  of  Henry  VIII.,  this  legal  estate 
or  interest  could  not  be  devised  by  will,  and  no  means  ex- 
isted by  which  the  legal  estate  could  be  prevented  from 
passing  to  the  natural  heir,  who  was  generally  the  oldest 
son,  with  the  possible  result  that  the  other  children  might 
be  left  unprovided  for.  The  court  of  chancery,  however, 
held  that,  if  land,  was  conveyed  to  feoffees  to  use,  the  use 
was  devisable ;  and  thus,  by  putting  the  land  in  use,  an  ab- 
solute power  of  testamentary  disposition  was  acquired. 
Again,  the  legal  interest  in  land  could  be  conveyed  only  in 
a  formal  notdrious  manner  by  livery  of  seisin;  that  is,  the 
conveying  party  executed  a  deed  of  feoffment,  and  then 
openly,  on  the  land  itself,  delivered  seisin  to  the  feoffee  by 
handing  to  him  a  clod,  a  piece  of  turf,  or  a  twig,  with  words 
showing  that  the  delivery  so  made  was  symbolical  of  the 
delivery  of  the  whole  property.  But,  when  the  land  had 
been  conveyed  to  uses,  the  cestui  que  use  might  deal  with 
the  beneficial  interest  by  an  entirely  secret  deed  or  instru- 

»  In  the  following  paragraphs  of  this  sketch  Haynes'  Outlines  of 
Equity  and  Kerley's  History  of  Equity  have  been  followed. 


350  EQUITABLE    PROPERTY TRUSTS.  (Ch.    14 

ment,  without  livery.  The  acquisition  of  these  larger  pow- 
ers of  alienation  must  have  been  a  great  inducement  for 
putting  lands  in  use. 

Again,  the  use  was  not,  until  the  reign  of  Henry  VIII., 
forfeitable  for  the  offense  of  the  cestui  que  use,  nor  did  it 
escheat  in  the  event  of  attainder,  though  the  land  itself  was 
liable  to  be  forfeited,  or  to  escheat,  in  the  event  of  the  at- 
tainder of  the  feoffee  to  uses.  In  the  turbulent  times  of 
the  middle  ages,  men  who  took  an  active  interest  in  political 
movements  would  therefore  naturally  vest  their  estates  in 
feoffees  to  uses  whose  known  characters  were  guaranties 
against  the  exposure  of  the  estates  to  forfeiture  or  escheat. 

Another  inducement  to  put  lands  in  use  is  to  be  found 
in  a  desire  to  escape  from  many  of  the  oppressive  feudal 
rights  of  the  lord,  such  as  marriage  and  wardship.  The 
rights  of  wardship  enabled  the  lord,  when  a  tenant  by 
knight  service  died  leaving  an  infant  heir,  to  enter  on  the 
heir's  lands,  and  to  take  the  whole  rents  and  profits  during 
minority,  subject  to  the  heir's  maintenance.  The  right  of 
marriage  authorized  the  lord  to  marry  his  ward  to  the  high- 
est bidder,  subject  to  the  only  restriction  that  the  marriage 
was  not  a  disparaging  one ;  and,  if  the  ward  refused  to  ac- 
cept the  marriage  offered,  he  was  heavily  mulcted. 

Still  another  inducement  to  put  land  in  use  is  to  be  found 
in  the  fact  that  a  creditor  could,  by  means  of  the  writ  of 
elegit,  take  possession  of  one-half  the  lands  of  which  his 
debtor  was  seised  of  a  legal  estate,  and  subject  the  rents 
and  profits  in  satisfaction  of  his  debts ;  but  he  had  no  such 
power  over  the  use. 

For  all  the  foregoing  reasons,  the  custom  of  putting  lands 
in  .use  became  extremely  popular  among  tenants.  But,  for 
the  same  reasons,  it  must  have  been  extremely  distasteful 
to  the  great  lords  and  the  crown,  who  were  defrauded  of 
their  "wardships,  relieifis,  heriots,  and  .escheats,"  and  to 
the  creditors  who  were  deprived  of  their  "extent  for  debt."  * 

•  Bacon's  Works,  Use  of  the  Law,  voL  13,  p.  240.  The  whole  of 
this  oft-quoted  passage,  arraigning  the  system  of  uses,  is  as  fol- 
lows: "A  man  that  had  cause  to  sue  for  his  land  knew  not  against 
whom  to  bring  his  action,  nor  who  was  the  owner  of  it  The  wife 
was  defrauded  of  her  thirds;  the  husband  of  being  tenant  by  the 
curtesy;  the  lord  of  his  wardship,  relief,  heriot,  and  escheat;  the 
creditor  of  his  extent  for  debt;  the  poor  tenant  of  his  lease." 


§§    151-153)  HISTORICAL   STATEMENT.  351 

The  statute  books  of  England  bear  witness  to  a  continual 
struggle  against  the  system.7  Finally,  in  the  reign  of  Henry 
VIII.  a  supreme  effort  was  made  to  sweep  away  uses,  root 
and  branch.  The  celebrated  statute  of  uses*  was  passed  to 
reinstate  the  "common  laws  of  this  realm"  by  turning  the 
equitable  uses  into  legal  estates,  with  all  the  incidents  and 
burdens  of  legal  estates.8 

The  history  of  the  English-speaking  race  does  not  fur- 
nish a  more  conspicuous  example  of  the  futility  of  legis- 

*  The  more  important  of  those  statutes  are  50  Edw.  III.  c.  6,  giv- 
ing creditors  execution  against  lands  and  chattels  in  spite  of  gifts 
made  in  fraud  of  them;    7  Rich.  II.  c.  12,  forbidding  aliens,  and 
15  Rich.  II.  c.  5,  forbidding  spiritual  corporations  or  persons,  to  hold 
lands  by  way  of  use;    1  Rich.  II.  c.  1,  making  all  grants  by  and 
executions  against  a  seller  of  lands  binding  upon  his  heirs  and  upon 
feoffees  to  his  or  their  use;   3  Hen.  VII.  c.  4,  forbidding  deeds  of 
gift  on  trust  made  to  defraud  creditors;    4  Hen.  VII.  c.  17,  declaring 
uses  liable  to  wardships  and  reliefs;    19  Hen.  VII.  c.  15,  declaring 
them  liable  to  execution;    and  26  Hen.  VIII.  c.  13,  declaring  them 
liable  to  forfeiture.     In  the  twenty-third  year  of  the  reign  of  Henry 
VIII.  a  bill  passed  the  house  of  lords  greatly  circumscribing  the 
right  to  put  land  in  use,  but  it  was  rejected  by  the  commons. 

*  St  27  Hen.  VIII.  c.  10. 

*  The  following  is  a  summary  of  the  statute:    The  preamble  com- 
plains that  by  secret  conveyances,  and  by  wills  made  "by  nude 
parolx  and  words,  sometimes  by  signs  and  tokens,  and  sometimes 
by  writing,"  made  for  the  most  part  by  persons  in  extremis,  with 
"scantly  any  good  memory  or  remembrance,"   and   "provoked  by 
greedy  and  covetous  persons  lying  in  wait  about  them,"  many  per- 
sons indiscreetly  disposed  of  their  inheritance,  whereby  heirs  lost 
their  lands,  and  lords  their  rights,  and  purchasers  were  made  inse- 
cure;   men  lost  their  tenancies  by  curtesy,  and  women  their  dow- 
ers;   perjuries  were  encouraged,  and  the  king  was  deprived  of  his 
profits  in  attainder,  and  on  purchases  by  aliens;    and  many  other 
inconveniences  happened,— to  the  "utter  subversion  of  the  ancient 
common  laws  of  this  realm."     The  statute  then  provides,  "for  the 
exterping  and  extinguishment"  of  these  errors,  that  "where  any  per- 
son or  persons  stand  or  be  seized  of  and  in  any  lands,  tenements,  or 
other  hereditaments  to  the  use,  confidence,  or  trust  of  any  other 
person  or  persons  or  any  body  publick,  by  reason  of  any  bargain, 
sale,  feoffment,  fine,  recovery,  covenant,  contract,  agreement,  will 
or  otherwise,  all  and  every  such  person  and  persons  and  bodies  poli- 
tick that  have  any  such  use,  confidence  or  trust  in  fee  simple  or 
otherwise,  or  in  remainder  or  in  reverter,  shall  stand  and  be  seized 
and  adjudged  in  lawful  seizin,  estate  and  possession  of  and  in  the 
same  lands,     *     *     *     of  and  in  such  like  estates  as  they  had  on 
use,  trust  or  confidence  of  or  in  the  same."    Kerley,  Hist.  Eq.  pp. 
132,  133. 


352  EQUITABLE    PROPERTY TRUSTS.  (Ch.    14 

lation  when  opposed  to  current  public  opinion.*  The  stat- 
ute declared  that  when  any  person  stood  "seised"  of  any 
"hereditament"  to  the  use  of  another,  such  other  should 
be  deemed  in  lawful  "seisin"  of  the  "hereditament."  Since 
the  words  "seised,"  "seisin,"  and  "hereditament"  were  ap- 
plicable only  to  freehold  estates,  the  statute  was  adjudged 
not  to  affect  any  trusts  of  personal  property  or  chattels  or 
terms  for  years  in  land.  It  was  also  held,  soon  after  the 
statute  was  passed,  that  special  trusts,  which  cast  some  duty 
on  the  trustee,  remained  unexecuted  by  the  statute,  since 
in  such  case  the  trustee  was  not  seised  wholly  to  the  use 
of  another,  but  partly,  at  least,  to  his  own  use. 

The  complete  nullification  of  the  statute,  however,  resulted 
from  a  decision  of  the  common-law  judges  rendered  about 
20  years  after  its  enactment.  To  enable  the  student  to 
clearly  understand  this  decision,  it  is  desirable  to  specifically 
call  his  attention  to  the  operation  of  the  statute.  Before 
the  statute,  if  there  was  a  feoffment  to  A.  and  his  heirs, 
to  the  use  of  B.  and  his  heirs,  A.  took  a  legal  estate  in  fee 
simple,  and  B.  was  a  cestui  que  use,  whose  rights  were  dis- 
regarded by  the  common-law  courts,  and  who  could  seek 
his  remedies  only  in  chancery.  After  the  statute  the  same 
limitation  would  secure,  not  only  the  use,  but  also  the  legal 
estate  to  B.;  in  other  words  the  use  would  at  once  draw 
to  itself  the  legal  estate,  or,  as  it  is  technically  expressed, 
the  statute  executed  the  use  in  B.  In  the  decision  above 
referred  to,  known  as  "Tyrrell's  Case,"  10  the  common-law 
judges  held  that  a  use  could  not  be  limited  upon  a  use.  It 
therefore  followed  from  this  decision  that  when  there  was  a 
limitation  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs, 
to  the  use  of  C.  (or  in  trust  for  C.)  and  his  heirs,  the  stat- 
ute had  no  effect  beyond  the  use  limited  to  B.  It  converted 
the  use  first  declared  into  a  legal  estate,  but  in  so  doing 
its  power  was  exhausted,  and  a  second  use  or  trust,  de- 
clared upon  or  after  the  first,  remained  unaffected  thereby. 
The  court  of  chancery,  however,  following  its  former  course 

•  Mr.  Sugden,  In  his  introduction  to  Gilbert  on  Uses  (page  63), 
•ays  of  the  judicial  nullification  of  the  statute:  "This  should  oper- 
ate as  a  lesson  to  the  legislature  not  vainly  to  oppose  the  current  of 
general  opinion;  for,  although  diverted  for  a  time,  it  will  regain  its 
old  channel." 

»o  2  Dyer,  155a,  1  White  &  T.  Lead.  Gas.  Eq.  335. 


§    154)  CLASSIFICATION    OF   TRUSTS,  363 

of  preserving  to  a  grantee  rights  which  were  meant  to  be 
preserved  by  the  grant,  stepped  in  and  supported,  as  trusts 
identical  in  character  wkfa  the  old  -uses,  the  trusts  or  u&es 
which  the  law  refused  to  recognize,  and  these  are  the  trusts 
so  familiar  in  later  equity.  The  student  is  now  able  to 
appreciate  Lord  Hardwicke's  re*nark:  "A  statute  made 
upon  great  consideration,  introduced  in  a  solemn  and  pomp- 
ous manner,  by  a  strict  construction,  has  had  no  other  ef- 
fect than  to  add  at  most  three  words  to  a  conveyance."  xl 


CLASSIFICATION  OP  TRUSTS. 

164.  Trusts  are  generally   classified  in  respect  to 
the  manner  of  their  creation,  as: 

(1)  Express  trusts,   created   by   the   intentional 

act  of  the  authors  of  the  trusts,  which 
are  either 

(a)  Express  private  trusts,  or 

(b)  Public  or  charitable  trusts. 

(2)  Implied  trusts,   created  by  the  operation  of 

law,  which  are  either 

(a)  Resulting  trusts,  or 

(b)  Constructive  trusts. 

This  classification  of  the  subject  is  that  generally  adopted 
by  text  writers,  and  will  be  followed  in  the  following  dis- 
cussion. It  refers  particularly  to  the  manner  of  the  creation 
of  trusts.  The  subject  has  also  been  classified  in  respect  to 
the  duties  of  trustees  into:  (l)  Simple  or  passive  trusts, 
in  which  the  trustees  have  no  active  duties  to  perform,  but 
are  mere  depositaries  of  the  trust  estate,  and  may  be  com- 
pelled in  equity  to  convey  the  estate  to  the  beneficiaries, 
or  according  to  their  direction ;  (2)  special  or  active  trusts, 
in  which  the  trustees  are  directed  to  carry  out  the  inten- 
tions of  the  settlor,  and  are  called  upon  to  actively  exert 
themselves  in  the  performance  of  their  duties.  This  classi- 
fication has  more  direct  application  to  express  trusts,  and 
will  be  treated  more  fully  in  connection  with  such  trusts. 

"  Hopkins  v.  Hopkins,  1  Atk.  591. 
EATOX.EQ.— 23 


354  EQUITABLE    PROPERTY — TRUSTS.  (Ch.   14 

Trusts  have  also  been  classified  in  respect  to  the  interpre- 
tation of  the  terms  creating  the  trust  as  (i)  executed  trusts, 
(2)  executory  trusts.  These  trusts  will  also  be  more  fully 
considered  in  their  proper  place. 

EXPRESS  PRIVATE  TRUSTS. 

165.  An  express  private  trust  is  one  created  for 

the  benefit  of  individuals  or  families,  and 
designed  for  private  convenience  and  sup- 
port.- 

The  distinction  between  a  private  and  a  public  or  chari- 
table trust  is  that  the  former  is  created  and  intended  for 
the  convenience  and  support  of  private  individuals  or  fam- 
ilies, while  the  latter  is  created  and  intended  for  the  gen- 
eral public  good.  The  rules  governing  the  two  classes  differ 
widely,  and  the  distinctions  will  be  pointed  out  when  we 
consider  public  or  charitable  trusts. 

EXPRESS  TRUSTS— PARTIES. 

166.  The  parties   necessary  to  the  creation  of  an 

express  trust  are. 

fa)  The  settlor,  or  person  creating  the  trust, 
(b)  The  trustee,  or  the  person  in  whom  the  legal 

title  is  vested. 
(o)  The  cestui   que  trust,  or  person  entitled  to 

the  beneficial  interest. 

SAME -WHO  MAY  BE  A  SETTLOR. 

167.  Every  person  who   can  hold   and  dispose  of 

any  legal  or  equitable  estate  or  interest 
in  property  may  create  a  trust  in  respect 
thereto.1 

|  185.    i  Perry.  Trusts,  |  22. 

I  156.  i  In  the  Proposed  (Field's)  Olv.  Code  N.  T.,  which 
has  been  adopted  In  California,  and  some  of  the  other  states,  the 
parties  to  a  trust  are  designated  as  a  trustor,  trustee,  and  benefi- 
ciary. 

i  157.    i  Underh.  Trusts,  art  12. 


§    157)  EXPRESS    TRUSTS.  355 

All  persons  sui  juris  may  impress  a  trust  on  property 
owned  by  them.  An  infant  can  create  a  trust  which  will 
be  valid  until  avoided.2  Modern  decisions,  both  in  this 
country  and  in  England,  hold  that  the  acts  and  contracts  of 
infants  are  voidable  only,  and  subject  to  their  election,  when 
of  age,  either  to  avoid  or  confirm  them.8  Persons  who 
have  been  judicially  declared  insane  cannot  create  either  a 
testamentary  trust,  or  a  trust  inter  vivos  in  favor  of  volun- 
teers.* It  has,  however,  been  generally  held  that  contracts 
of  lunatics,  who  have  not  been  judicially  declared  insane, 
are  voidable  only,  and,  if  restitution  can  be  made,  they  will 
be  set  aside.5  It  follows,  then,  that  a  conveyance  in  trust 
by  a  lunatic  is  good  until  it  is  avoided.  If  such  conveyance 
is  fair  and  reasonable,  and  the  parties  cannot  be  restored 
to  their  former  condition,  it  will  not  be  set  aside.*  Corpo- 
rations, in  the  absence  of  restricting  statutes,  may  convey 
their  property  in  trust.7 

a  Whitney  v.  Dutch,  14  Mass.  457;  Shipley  v.  Bunn,  125  Mo.  445, 
28  S.  W.  754;  Illinois  Land  &  Loan  Co.  v.  Bonner,  75  111.  315. 

»  Tucker  v.  Moreland,  10  Pet.  58,  71,  9  L.  Ed.  345;  Irvine  v.  Ir- 
Tine,  9  Wall.  617,  19  L.  Ed.  800. 

*  Niell  v.  Morley,  9  Ves.  478;  L'Amoureux  v.  Crosby,  2  Paige  (N. 
Y.)  422,  22  Am.  Dec.  655;  Pearl  v.  McDowell,  3  J.  J.  Marsh.  (Ky.) 
658,  20  Am.  Dec.  199;  Crawford  v.  Scovell,  94  Pa,  48. 

B  Behrens  v.  McKenzie,  23  Iowa,  333,  92  Am.  Dec.  428;  Somers  v. 
Pumphrey,  24  Ind.  231;  Fay  v.  Burditt,  81  Ind.  433,  42  Am.  Rep. 
142;  Boyer  v.  Berryman,  123  Ind.  451,  24  N.  E.  249;  Burnham  v. 
Kidwell,  113  111.  425;  Baldwin  v.  Golde,  88  Hun,  115,  34  N.  Y.  Supp. 
587.  But  in  New  York  a  conveyance  of  land  by  a  lunatic  is  void 
even  before  inquisition  found.  Van  Deusen  v.  Sweet,  51  N.  Y.  378. 

«  Story,  Eq.  Jur.  §  228;    Perry,  Trusts,  §  34. 

T  Mayor,  etc.,  of  Colchester  v.  Lowten,  1  Ves.  &  B.  226;  State  v. 
Bank,  6  Gill  &  J.  (Md.)  205,  26  Am.  Dec.  561;  Dana  v.  Bank,  5 
Watts  &  S.  (Pa.)'  226;  Pope  v.  Brandon,  2  Stew.  (Ala.)  401,  20  Am. 
Dec.  49,  where  Collier,  J.,  says:  "The  power  of  a  corporation  to 
vest  its  property  in  trustees  results  from  the  control  which  every 
one  possesses  by  law  over  his  own  estate.  It  cannot  be  that  a  cor- 
poration Is  under  a  greater  restraint  in  regard  to  the  use  and  en- 
joyment of  Its  estate  than  a  natural  person,  unless  a  restriction  la 
imposed  by  positive  law,  or  may  be  inferred  from  Its  character  and 
the  object  of  Its  existence." 


356  EQUITABLE  PROPERTY TRUSTS.         (Ch.  14 


SAME— WHO  MAY  BE  A  TRUSTEE. 

168.  The  trustee  should  be  a  person  capable  of 
taking  and  holding  the  legal  estate,  and 
possessed  of  natural  capacity  and  legal  abil- 
ity to  execute  the  trust,  and  domiciled  -with- 
in the  jurisdiction  of  the  court.1 

It  may  be  laid  down  as  a  general  rule  that  whoever  is 
capable  of  taking  the  legal  title  or  beneficial  interest  in  the 
trust  estate  is  also  capable  of  taking  such  an  estate  in  trust 
for  others.8  It  does  not  necessarily  follow  that  whoever 
is  qualified  to  take  in  trust  is  capable  of  performing  or  exe- 
cuting it.  The  question  then  becomes,  who  may  execute 
and  perform  a  trust  ?  * 

The  sovereign  may  sustain  the  character  of  a  trustee,  so 
far  as  regards  the  capacity  to  take  the  estate  and  execute 
the  trust;  but  the  difficulty  lies  in  enforcing  the  perform- 
ance of  the  trust  in  favor  of  the  beneficiaries  and  against 
the  sovereign  power.4  A  state  cannot  be  sued  in  any  court 
without  its  consent,  or  unless  there  is  some  general  or 
special  statute  authorizing  the  suit.6  The  administration  of 
a  trust  which  is  accepted  by  a  state  is  either  by  its  legis- 
lature or  some  officer  or  board  appointed  by  it.* 

In  ancient  times  it  was  laid  down  that  corporations  could 
not  accept  or  execute  trusts,  for  the  reason  that  no  con- 
fidence could  be  placed  in  them,  and  they  could  not  be 
compelled  by  courts  of  equity  to  execute  a  trust,  since  eq- 
uity acts  upon  the  conscience,  and  it  was  thought  impossi- 

f  158.     i  Lewin.  Trusts,  27. 

»  Fonbl.  Eq.  5  30,  note;    Hill,  Trustees,  48;    Perry,  Trusts,  |  39. 

•  Perry,  Trusts,  |  89. 

«  Lewin,  Trusts,  p.  80.  But  see  Levy  v.  Levy,  33  N.  Y.  97.  122, 
where  it  was  held  that  neither  the  United  States  nor  the  state  of 
Virginia,  whose  powers  are  fixed  and  prescribed  by  a  written  consti- 
tution, could  take  upon  themselves  the  exercise  of  the,  functions  of 
trustees.  This  case  has  not  been  followed,  and  a  contrary  prin- 
ciple seems  to  have  been  laid  down.  McDonogh's  Ex'rs  v.  Murdoch, 
IB  How.  807,  14  L.  Ed.  732. 

•  Brlggs  v.  Light  Boat  Lower  Cedar  Point.  11  Allen  (Mass.)  157. 

•  This  was  done  in  the  case  of  the  Smithsonian  Institute,  a  public 
trust    5  Stat  W,  c,  252. 


§    158)  EXPRESS   TRUSTS.  357 

ble  to  enforce  an  equitable  demand  against  a  body  so  arti- 
ficially formed  that  from  its  nature  it  could  possess  no 
conscience.7  This  theory  was  long  since  exploded,  and  it 
is  now  universally  held  that  a  corporation  may  be  a  trustee, 
if  the  execution  of  the  trust  is  within  the  scope  of  its  cor- 
porate powers.8  Municipal  corporations  may  take  and  hold 
property  for  public  charities  and  other  benevolent  purposes.9 
An  unincorporated  association  cannot,  however,  act  as  a 
trustee  of  a  private  trust,  since  it  is  incapable  of  taking 
title  to  land;  but  the  rule  is  different  in  the  case  of  public 
trusts.10 

There  never  existed  any  legal  incapacity  in  a  married 
woman  to  act  as  a  trustee  or  to  execute  a  trust.  The  stat- 
utes in  many  of  the  states  have  removed  the  common-law 
restrictions  imposed  upon  the  power  of  a  married  woman 
'to  contract,  and  by  such  statutes  she  is  made  liable  for  her 
wrongful  and  tortious  acts,  and  her  husband  is  released 
from  such  liability.  Where  such  statutes  exist,  there  seems 
to  be  no  good  reason  why  a  married  woman  should  not 
be  appointed  a  trustee.  Her  husband  would  not  be  liable 
for  her  breaches  of  trust,  and  the  only  objection  that  could 
arise  against  such  an  appointment  would  be  the  possible 
influence  exerted  by  her  husband  over  her  actions.11 

An  infant  is  presumed  to  lack  legal  capacity,  judgment, 
and  discretion.  All  of  his  acts,  beyond  such  as  are  merely 
ministerial,  are  voidable.  He  cannot  be  held  responsible 
for  a  breach  of  trust.  Hence,  though  he  may  be  legally 
appointed  a  trustee,  a  case  is  scarcely  conceivable  in  which 
circumstances  could  warrant  such  an  appointment.1* 

*      -» 

T  Bac.  St  Uses,  p.  57;   Stigden,  Vend.  p.  417. 

»  Attorney  General  v.  St.  Johns  Hospital,  2  De  Gex,  J.  &  S.  621; 
In  re  Howe,  1  Paige  (N.  Y.)  214;  Vidal  v.  Girard's  Ex'rs,  2  How. 
188-190,  11  L.  Ed.  205;  Town  of  Dublin's  Case,  38  N.  H.  577. 

9  Sargeant  v.  Cornish,  54  N.  H.  18;  Dalley  v.  City  of  New  Haven, 
60  Conn.  314,  22  All.  945,  14  L.  R.  A.  69;  Higginson  v.  Turner,  171 
Mass.  586,  51  N.  E.  172;  Handley  r.  Palmer  (C.  C.)  91  Fed.  948, 
Stone  v.  Perkins  (C.  C.)  85  Fed.  616. 

i°. Tucked  v.  Society,  7  Mete.  (Mass.)  188;  Winslow  v.  Cummlngs, 
8  Cush.  (Mass.)  358;  Burbank  v.  Whitney,  24  Pick.  (Mass.)  146,  85 
Am.  Dec.  312. 

11  Still  v.  Ruby,  85  Pa.  373;   Drummond  v.  Tracy,  1  Johns.  Eng. 
Ch.  608. 

12  Smith,  Eq.  p.  26;    Perry,  Trusts,  §§  52,  54. 


G58  EQUITABLE    PKOPliRTY TRUSTS.  (Ch.    14 

An  alien  cannot  act  as  trustee  of  real  property,  except 
in  those  states  where  he  is  permitted  to  hold  property  to 
his  own  use.18  There  is  no  objection  anywhere,  however, 
to  his  appointment  as  trustee  of  personal  property.  While 
an  insolvent  is  not  absolutely  disqualified  from  being  a  trus- 
tee, and  his  insolvency  has  no  effect  on  the  trust  estate,14 
his  insolvency  is  unquestionably  a  good  ground  for  his  re- 
moval.18 

It  is  a  rule  of  equity  which  admits  of  no  exception  that 
a  court  of  equity  never  wants  a  trustee.  This  rule  is  ap- 
plied wherever  there  is  no  appointment  of  a  trustee ;  where 
the  individuals  named  as  trustees  fail  by  death,  disability, 
or  by  refusal  to  act ;  or  where  the  trust  cannot,  for  any 
reason,  be  executed  through  the  medium  specified  by  the 
settlor.  In  all  these  cases  a  court  of  equity  will  supply  the 
deficiency,  and  the  trust  will  be  executed  through  some 
agency  designated  by  it.18  Property  once  charged  with  a 
valid  trust  will  be  followed  in  equity  into  whosesoever  hands 
it  comes,  and  he  will  be  charged  with  the  execution  of  the 
trust,  unless  he  is  a  purchaser  for  value,  and  without  notice.17 

SAME— WHO  MAY  BE  A  CESTTJI  QUE  TRUST. 

169.  As  a  general  rule,  equity  follows  the  law,  and 
•whoever  is  capable  of  taking  and  holding 
the  legal  title  to  property  may,  as  cestui  quo 
trust,  be  the  recipient  of  the  equitable  title;1 
and,  as  the  legal  estate  can  be  conveyed  or 
devised  only  to  a  definite  grantee  or  dev- 
isee, so  the  cestui  que  trust  must  likewise 
be  certain  and  definite. 

l»  Perry,  Trusts,  §  65. 

»«  Harris  v.  Harris,  29  Beav.  107;  Shryock  v.  Waggoner,  28  Pa. 
431. 

"In  re  Barker's  Trusts,  1  Ch.  Div.  43;  In  re  Adams'  Trust,  12 
Ch.  Div.  634. 

»•  Snell,  Eq.  (Am.  Ed.)  p.  139;  Story,  Eq.  Jur.  §  946;  McCartee 
T.  Society,  9  Cow.  (N.  Y.)  437,  18  Am.  Dec.  516;  Bowdltch  v.  Banue- 
los,  1  Gray  (Mass.)  220. 

"  Perry,  Trusts,  §  38;  Shepherd  r.  McEvers,  4  Johns.  Ch.  (N.  T.) 
130,  8  Am.  Dec.  501. 

|  100.     »  Lew  in.  Trusts,  p.  44. 


§    159)  EXPRESS   TRUSTS.  359 

It  may  not  be  necessary  to  specify  in  detail  the  classes 
of  persons  who  are  capable  of  becoming  cestuis  que  trustent. 
As  stated  in  the  black-letter  text,  any  person  capable  of 
taking  and  holding  the  legal  title  may  become  the  bene- 
ficiary of  a  trust.  An  alien,  at  common  law,  could  not  take 
or  hold  land  by  descent.  He  could  take,  but  not  hold, 
land  acquired  by  purchase,  and  as  to  such  lands  his  title  was 
good  as  against  every  one  save  the  sovereign;  so  that, 
until  the  claim  of  the  sovereign  was  asserted,  his  title  was 
good  as  against  the  world.2  The  same  doctrine  prevails  in 
equity,  and  an  alien  beneficiary  under  a  trust  deed  can  as- 
sert his  interest  as  against  every  one  except  the  state.8 
The  statutes  of  the  several  states  have  modified  to  a  greater 
or  less  extent  the  common-law  rule  as  to  the  rights  of 
aliens  to  take  and  hold  by  descent,  grant,  or  purchase,  and 
have,  of  course,  affected  the  rights  of  aliens  as  beneficiaries 
under  trust  deeds.  There  is  no  rule  of  law  or  equity  which 
restricts  the  right  of  an  alien  to  become  the  recipient  of  the 
benefits  of  a  trust  of  personal  property. 

It  is  a  well-established  principle  that  no  valid  private 
trust  can  be  created  unless  there  be  a  certain  and  definite 
beneficiary.  "If  there  is  a  single  postulate  of  common  law 
established  by  an  unbroken  line  of  decisions,  it  is  that  a 
trust  without  a  certain  beneficiary  who  can  claim  its  en- 
forcement is  void."4  Thus  a  devise  for  the  benefit  of  "near 
relations"  has  been  considered  too  indefinite  to  create  a 
trust.5  The  cestui  que  trust  need  not,  however,  be  described 
by  name.  Any  other  designation  or  description  by  which 
he  may  be  identified  is  sufficient." 

»  Levy's  Lessee  v.  McCartee,  6  Pet.  108,  8  L.  Ed.  334;  Governeur's 
Heirs  v.  Robertson,  11  Wheat.  332,  6  L.  Ed.  48;  Montgomery  v. 
Dorion,  7  N.  H.  475;  Scanlan  v.  Wright,  13  Pick.  (Mass.)  523,  25 
Am.  Dec.  344;  Mooers  v.  White,  6  Johns.  Ch.  (N.  Y.)  360;  Munro 
v.  Merchant,  28  N.  Y.  9. 

«  Cross  v.  De  Valle,  1  Cliff.  282,  Fed.  Cas.  No.  8,430;  Id.,  1  Wall. 
8,  17  L.  Ed.  515. 

4  Wright,  J.,  in  Levy  v.  Levy,  83  N.  Y.  97,  107. 

»  Sale  v.  Moore,  1  Sim.  534. 

•  Holmes  v.  Mead,  52  N.  Y.  332,  343. 


360  EQUITABLE    PROPERTY TRUSTS.  (Cb.   14 


SAME— PROPERTY  SUBJECT  TO  TRUST. 

160.  As  a  general  rule,  all  property,  whether  real 
or  personal,  legal  or  equitable,  may  be  made 
the  subject  of  a  trust.1 

All  property  which  is  assignable  at  law  or  in  equity, 
either  real  or  personal  may  be  transferred  in  trust.  At 
common  law,  choses  in  action  were  not  assignable ;  but 
this  rule  was  never  followed  in  equity,2  and  choses  in  ac- 
tion may  be  made  the  subject  of  a  trust.  The  same  is 
true  as  to  expectancies,*  contingent  interests,4  reversionary 
estates,8  and  estates  in  remainder.6  There  are,  however, 
certain  species  of  property  which  are  made  inalienable  by 
statute  or  rules  of  public  policy.  In  some  jurisdictions  it 
has  been  held  that  an  assignment  of  future  wages  is  invalid,7 
although  the  general  rule  would  seem  to  favor  the  validity 
of  such  an  assignment  where  the  wages  are  to  be  earned 
under  an  existing  contract  of  employment.8  The  unearned 
fees  and  salary  of  a  public  officer  have  almost  invariably 
been  held  to  be  unassignable.8 

Foreign  lands  are  governed  by  the  laws  of  the  state  or 
country  where  located ;  and  a  trust  created  in  such  lands, 
if  invalid  in  such  foreign  state  or  country,  will  be  invalid 

|  160.     »  LewlB,  Trusts,  p.  47. 

«  Thalimer  v.  Brinkerhoff,  20  Johns.  (N.  T.)  386;  Mandevllle  T. 
Welch,  5  Wheat.  283,  5  L.  Ed.  87;  Dlx  v.  Cobb,  4  Mass.  508. 

•  Fitzgerald  v.  Vestal,  4  Sneed  (Tenn.)  258;    Varick  v.  Edwards, 
1  Hoff.  Ch.  (N.  Y.)  382;    Steele  v.  Frlerson,  85  Tenn.  432,  8  8.  W. 
649;    In  re  Fritz's  Estate,  160  Pa.  15G,  26  Atl.  642. 

4  Varick  T.  Edwards,  1  Hoff.  Ch.  (N.  Y.)  382. 

•  Woodgate  v.  Fleet,  44  N.  Y.  1. 

•  Aloote  v.  Littel,  41  N.  Y.  66;   Whelen  Y.  Phillips,  151  Pa.  812.  25 
Atl.  44;    Watson  v.  Smith,  110  N.  C.  6,  14  S.  E.  640,  28  Am.  St  Rep. 
605. 

T  Herbert  v.  Bronson,  125  Mass.  475;  Eagan  T.  Luby,  133  Mass. 
643;  Lehlgh  Val.  R.  Co.  r.  Woodring,  116  Pa.  513,  9  Atl.  58. 

•  O'Connor  y.  Meehan,  47  Minn.  247,  49  N.  W.  982;    Sullivan  T. 
Sweeney,  111  Mass.  306;    Garland  r.  Harrington,  51  N.  H.  409. 

•  Bowery  Nat.  Bank  v.  Wilson,  122  N.  Y.  478,  25  N.  E.  855,  9  L. 
R.  A.  706;    State  v.  Williamson,  118  Mo.  146,  23  S.  W.  1054.  21  L.  R. 
A.  827;    Schwenck  v.  Wyckoff,  46  N.  J.  Eq.  560,  20  Atl.  259,  19  Am. 
St.  Rep.  438;    Bangs  v.  Dunn,  66  CaL  72,  4  Pac.  963. 


§§    161-162)  EXPRESS    TRUSTS.  361 

elsewhere.10  If  the  parties  affected  by  the  trust  are  within 
the  jurisdiction  of  the  court,  the  trust  will  be  enforced.11 
Courts  of  equity  cannot  make  a  decree  affecting  and  binding 
upon  land  in  a  foreign  state  or  country,  but  they  can  make 
and  enforce  a  decree  against  the  trustee,  if  he  is  brought 
within  their  jurisdiction.12  Such  courts  must,  therefore,  re- 
fuse to  act  where  the  relief  sought  demands  a  decree  against 
the  land  which  is  the  subject  of  the  trust,  and  which  is  be- 
yond their  jurisdiction.1* 


SAME— CREATION. 

161.  An  express  trust  in  relation  to  real  property 
must  either  be  created  by  will,  or  evidenced 
by  some  "writing,  signed  by  the  settlor. 

162  An  express  trust  in  relation  to  personal  prop- 
erty may  be  made  verbally,  unless  intended 
to  be  testamentary,  in  which  case  it  must 
be  created  by  a  duly  executed  will  or  cod- 
icil. 

Before  the  enactment  of  the  statute  of  frauds,  trusts  of 
both  real  and  personal  property  could  be  declared  by  parol. 
As  Mr.  Lewin  has  said,  trusts,  like  uses,  are  in  their  na- 
ture averrable;  i.  e.  may  be  declared  by  word  of  mouth, 
without  writing,  in  the  absence  of  a  statute  requiring  it.1 

10  Underh.  Trusts,  art.  9. 

*i  Perry,  Trusts,  9  71.  And  see  Massle  v.  Watts,  6  Cranch,  160, 
8  L.  Ed.  181,  where  Chief  Justice  Marshall  laid  down  the  rule  "that, 
In  case  of  fraud  of  trust,  or  of  contract,  the  jurisdiction  of  a  court 
of  chancery  is  sustainable  wherever  the  person  be  found,  although 
lands  not  within  the  Jurisdiction  of  that  court  may  be  affected  by 
the  decree." 

"  White  y.  White,  7  Gill  &  J.  (Md.)  208;  Mead  r.  Merrltt,  2  Paige 
(N.  T.)  404. 

i«  Cole  v.  Cunningham,  133  U.  S.  107,  10  Sup.  Ct.  269,  33  L.  Ed. 
B38;  Cloud  v.  Greasley,  125  111.  313,  17  N.  E.  826;  Potter  v.  Hollis- 
ter,  45  N.  J.  Eq.  508,  18  Atl.  204. 

§§  161, 162.  i  Lewin,  Trusts,  41.  Lord  Chief  Justice  Gilbert  stat- 
ed the  principle  as  follows:  "At  common  law  a  use  might  have 
been  raised  by  words  upon  a  conveyance  that  passed  the  possession 
by  some  solemn  act,  as  feoffment;  but,  where  there  was  no  such 


362  EQUITABLE  PROPERTY — TRUSTS.        (Ch.  14 

But  the  original  statute  of  frauds  provided  that  "all  dec- 
larations or  creations  of  trusts,  or  confidences  in  any  lands, 
tenements,  or  hereditaments,  shall  be  manifested  and  proved 
by  some  writing,  signed  by  the  party  who  is  by  law  enabled 
to  declare  the  trust,  or  by  his  last  will  in  writing,  or  else 
they  shall  be  utterly  void,"  and  also  that  "all  grants  and 
assignments  of  any  trust  or  confidence  shall  likewise  be  in 
writing  signed  by  the  party  granting  or  assigning  the  same, 
or  by  such  last  will  or  devise,  or  else  shall  likewise  be  ut- 
terly void."2  Similar  statutes  have  been  enacted  in  the 
states  of  this  country.8 

Wherever  such  statutes  have  been  enacted,  trusts  in  real 
property  cannot  be  proved  by  parol.  It  does  not  follow 
that  trusts  in  real  property  must  be  created  by  written  in- 
struments. It  is  a  sufficient  compliance  with  the  statute  if 
they  be  manifested  and  proved  by  writing;4  for  if  there  be 
written  evidence  of  the  existence  of  the  trust,  the  danger 
of  parol  evidence,  against  which  the  statute  was  directed, 
is  effectually  removed.5  A  subsequent  written  acknowledg- 
ment of  the  creation  of  a  trust  will  establish  the  trust  es- 
tate as  of  the  date  of  its  creation.6  The  statute  prescribes 
no  particular  form  by  which  the  trust  is  to  be  created  or 
declared.7  And,  as  was  stated  in  a  quite  recent  New  York 
case:  "It  is  not  necessary  now  to  produce  a  deed  or  a 
formal  writing  intended  for  the  purpose,  in  order  to  prove 
the  trust,  but  letters  or  informal  memoranda,  signed  by 
the  party,  and  even  admissions  in  a  pleading  in  another 
action  between  other  parties,  if  signed  by  the  party  with 

act,  then  It  seems  a  deed  declaratory  of  the  use  was  necessary,  for, 
as  a  feoffment  might  be  made  at  common  law  by  parol,  so  might 
the  uses  be  declared  by  parol.  But  where  a  deed  was  necessary 
for  passing  the  estate  Itself,  it  was  also  requisite  for  the  declara- 
tion of  the  uses."  Gilb.  Uses,  270. 

•  29  Car.  II.  c.  3,  §§  7-9. 

•  The  statutes  of  the  several  states  differ  from  the  English  and 
among  themselves  in  language,  but  for  the  most  part  they  are  sub- 
stantially the  same.    See  Perry,  Trusts,  S  "8,  note. 

«  Forster  v.  Hale,  3  Ves.  690;  Gardner  v.  Rowe,  2  Sim.  &  S.  848; 
Movan  v.  Hays,  1  Johns.  Ch.  (N.  Y.)  339,  342;  Wiser  v.  Allen,  92 
Pa.  317:  McVay  v.  McVay,  43  N.  J.  Eq.  47,  10  Atl.  178. 

•  Perry.  Trusts,  f  79. 

•  Ambrose  v.  Ambrose,  1  P.  Wms.  322;    Barrell  y.  Joy,  16  Mass. 
223. 

T  Wright  v.  Douglass,  7  N.  Y.  504,  569;  Cook  v.  Barr,  44  N.  Y.  158. 


§§    161-162)  EXPRESS    TRUSTS.  363 

knowledge  of  its  contents,  will  satisfy  the  requirements  of 
the  statute,  if  they  contain  enough  to  show  the  nature,  char- 
acter, and  extent  of  the  trust  interest."  8  The  statutes  in 
several  of  the  states  have  prescribed  that  a  trust  in  lands 
must  be  created  and  declared  in  writing.  But  it  has  been 
thought  that  this  modification  in  the  language  of  the  orig- 
inal statute  has  not  changed  the  general  rule  as  originally 
established,  and  that,  notwithstanding  such  modification,  the 
same  evidence  will  be  received  to  establish  a  trust.' 

Statutes  have  also  been  enacted  in  the  several  states  regu- 
lating the  execution  of  wills,  and  prescribing  the  formalities 
to  be  observed  by  testators  in  relation  thereto.  These  stat- 
utes require  all  wills  to  be  in  writing,  and  to  be  signed  and 
executed  by  the  testator  in  the  presence  of  witnesses,  ex- 
cept in  the  case  of  soldiers  in  actual  service,  and  sailors  at 
sea,  whose  parol  declarations,  known  as  "nuncupative  wills," 
will  be  effectual  in  disposing  of  their  property.  It  follows 
from  these  statutes  that  trusts  of  real  or  personal  property 
cannot  be  created  in  a  will,  unless  the  will  is  executed  in 
such  form  that  it  can  be  admitted  to  probate,  and  pass  the 
estate  or  interest  upon  which  it  is  intended  to  operate.10 
This  does  not  preclude  the  effect  of  a  defective  will  as  evi- 
dence of  a  trust  created  by  the  testator  prior  to  the  execu- 
tion of  such  will.  Although  the  will  is  so  defective  as  to 
be  incapable  of  passing  the  estate,  yet,  if  signed  by  the 
testator,  under  the  above  rule,  it  would  be  as  good  proof 
of  the  creation  of  the  trust  as  any  other  memorandum  or 
writing  signed  by  the  testator;11  although  if  the  validity 

«  Hutchins  v.  Van  Vechten,  140  N.  Y.  115,  118,  35  N.  E.  446.  And 
Bee  Loring  v.  Palmer,  118  U.  S.  321,  6  Sup.  Ct.  1Q73,  30  L.  Ed.  211; 
Urann  v.  Coates,  109  Mass.  581;  In  re  Roberts'  Appeal,  92  Pa.  407. 
An  answer  'to  a  complaint  in  a  judicial  proceeding  may  establish  a 
trust,  Broadup  v.  Woodman,  27  Ohio  St.  553;  McVay  v.  McVay,  43 
N.  J.  Eq.  47,  10  Atl.  178;  or  a  letter  recognizing  another's  control  of 
the  property,  Packard  v.  Putnam,  57  N.  H.  43;  memoranda,  one 
signed  and  another  cited,  Gordon  v.  McCulloh,  66  Md.  245,  7  AtL 
457;  Avriting  signed  by  initials,  Smith  v.  Howells,  11  N.  J.  Eq.  349. 

»  Perry,  Trusts,  §  81.  And  see  In  re  Sheets'  Estate,  52  Pa,  527; 
Blodgett  v.  Hildreth,  103  Mass.  484;  Bragg  v.  Paulk,  42  Me.  502; 
McClellan  v.  McClellan,  65  Me.  504;  Kingsbury  v.  Burnside,  58  111. 
310,  11  Am.  Rep.  67. 

10  Davis  v.  Stambaugh,  163  111.  557,  45  N.  E.  170;   Chase  v.  Stock- 
ett,  72  Md.  235,  19  Atl.  7G1. 

11  Perry.  Trusts,  §  91;   Leslie  v.  Leslie,  53  N.  J.  Eq.  275,  281,  31 
Atl.  170. 


364  EQUITABLE   PROPERTY TRUSTS.  (Ch.   14 

of  the  trust  depends  upon  the  will  to  transfer  title  of  the 
property,  the  will  cannot  be  used  as  evidence  unless  it 
was  legally  executed.*  Mr.  Lewin  states  the  law  as  fol- 
lows: "We  must  bear  in  mind  that  the  absolute  owner 
of  property  combines  in  himself  both  the  legal  and  equitable 
interest;  and,  when  the  legislature  enacts  that  no  devise 
or  bequest  of  property  shall  be  valid  without  certain  cere- 
monies, a  testator  cannot,  by  an  informal  instrument,  affect 
the  equitable  any  more  than  the  legal  estate,  for  the  one 
is  a  constituent  part  of  the  ownership  as  much  as  the  other. 
*  *  *  As,  if  a  legacy  be  bequeathed  by  a  will  in  writing 
to  A.  upon  trust,  and  the  testator  by  parol  express  an  in- 
tention that  it  shall  be  held  by  A.  upon  trust  for  B.,  such  a 
direction  is  in  fact  a  testamentary  disposition  of  the  equi- 
table interest  in  the  chattel,  and  therefore  void  by  the  stat- 
ute, which  imposes  the  necessity  of  a  written  will.  If  it 
be  said  that  such  expression  of  intention,  though  void  as  a 
devise  or  bequest,  may  yet  be  good  as  a  declaration  of 
trust,  and  therefore,  that,  where  the  legal  estate  of  a  free- 
hold is  well  devised,  a  trust  may  be  ingrafted  upon  it  by  a 
single  note  in  writing;  and,  where  a  personal  chattel  is 
well  bequeathed,  a  trust  of  it,  as  excepted  from  the  seventh 
section  of  the  statute  of  frauds,  may  be  raised  by  a  mere 
parol  declaration, — the  answer  is  that  a  wide  distinction  ex- 
ists between  testamentary  dispositions  and  declarations  of 
trust.  The  former  are  ambulatory  until  the  death  of  the 
testator,  but  the  latter  take  effect,  if  at  all,  at  the  time  of 
the  execution.  *  *  *  We  may,  therefore,  safely  assume, 
as  an  established  rule,  that,  if  the  intended  disposition  be 
of  a  testamentary  character,  and  not  to  take  effect  in  the 
testator's  lifetime,  but  ambulatory  until  his  death,  such  dis- 
position is  inoperative,  unless  it  be  declared  in  writing,  in 
strict  conformity  with  the  statutory  enactments  regulating 
devises  and  bequests."  1J  Personal  property  is  not  within 
the  provisions  of  the  statute  of  frauds,  and  there  seems  no 
valid  reason  why  trusts  in  such  property  cannot  be  created 
by  parol.1' 

*  Andlng  r.  Davis,  88  Miss.  574,  77  Am.  Dec.  658,  and  see  Davis 
Y.  Stambaugh.  163  111.  567.  45  N.  E.  170;  Chase  r.  Stockett,  72  Md. 
230,  19  AtL  761. 

«  Lewln.  Trusts.  66. 

i»  Oilman  v.  McArdle,  09  N.  Y.  451,  2  N.  E.  464;  Day  v.  Roth,  18 
N.  Y.  448;  In  re  Carpenter,  131  N.  Y.  86,  29  N.  E.  1005;  Hess'  Appeal, 


§    163)  EXPRESS    TRUSTS.  865 


SAME— LANGUAGE  CREATING  TRUST. 

163.  No  particular  or  technical  -words  are  required 
to  create  a  trust.  It  is  sufficient  if  it  clearly 
appears  that  there  was  an  intention  to 
create  a  trust,  or  to  confer  a  benefit  best 
carried  out  by  means  thereof,  and  the  prop- 
erty embraced  'within  the  trust,  the  benefi- 
ciaries in  whose  behalf  it  is  created,  and 
the  manner  in  which  it  is  to  be  performed 
are  clearly  indicated,1 

The  word  "trust"  is,  of  course,  the  proper  word  to  use 
in  creating  a  trust;  but  words  which  import  confidence, 
direction,  proviso,  or  condition,  and  even  words  of  recom- 
mendation and  request  (at  all  events,  in  a  will),  may  be 
construed  to  evince  an  intention  to  create  a  trust,  unless 
accompanied  by  other  words  which  indicate  an  intention 
that  the  first  taker  should  have  a  discretionary  power  over 
the  subject,  or  that  the  donor  did  not  intend  the  wish  to 
be  imperative.*  The  plainest  case  of  a  trust  occurs  where 
property  is  devised  or  conveyed  to  A.  In  trust  for  B.  But 
the  word  "trust"  need  not  be  used.  Thus,  a  devise  of  land 
to  A.,  with  a  proviso  that  B.  shall  have  a  home  and  sup- 
port thereon,  is  construed  to  impose  a  trust  on  A.  to  main- 
tain B.  on  the  land.*  So,  if  A.  devises  land  to  B.,  "he  pay- 
ing testator's  debts,"  the  condition  is  construed  to  impose  a 
trust  on  B.  to  pay  those  debts.*  And  if  a  testator  be- 
queaths or  devises  property  to  A.,  and  states  that  he  "re- 
quests,"8 or  "has  confidence,"8  or  "wishes  or  desires"7 

112  Pa.  168,  4  Atl.  340;  Calder  v.  Moran,  49, Mich.  14,  12  N.  W.  892; 
Chace  T.  Chapln,  130  Mass.  128;  Danser  v.  Warwick,  33  N.  J.  Eq.  133. 
I  163.     i  Underh.  Trusts,  art.  7;   Pom.  Eq.  Jur.  §  1009. 

*  Howorth  v.  Dewell,  29  Beav.  18;  Benson  v.  Whittam,  5  Sim.  22. 

*  Lyon  v.  Lyon,  65  N.  Y.  339;  In  re  Goodrich's  Estate,  38  Wis.  492. 

*  Wright  v.  Wilkin,  2  Best  &  S.  232.     See,  also,  Stanley  v.  Colt,  5 
Wall.  119,  18  L.  Ed.  502;   Sohier  v.  Trinity  Church,  109  Mass.  1. 

»  Knox  v.  Knox,  59  Wis.  172,  18  N.  W.  155,  48  Am.  Rep.  487. 
«  Dresser  v.  Dresser,  46  Me.  48;  Warner  v.  Bates,  98  Mass.  274. 
f  Cockrill  r.  Armstrong,  31  Ark.  580;  Reid's  Adm'r  v.  Blackstone, 
14  Grat  (Va.)  363. 


366  EQUITABLE    PROPERTY TRUSTS.  (Ch.    14 

that  it  be  applied  for  the  benefit  of  B.,  such  testator's  words 
evince  an  intention  that  A.  should  not  keep  the  property 
beneficially. 

Intention  must  Appear. 

Although  no  particular  form  of  expression  is  required  to 
create  a  trust,  there  must  be  a  definite  intention,  expressed 
with  sufficient  clearness.8  It  is  not  enough  to  state  that  a 
purchase  was  made  for  another,  for  the  mere  fact  that  the 
purchaser  intended  to  give  the  property  to  the  alleged  bene- 
ficiary cannot  create  a  trust.8  Courts  seek  for  the  inten- 
tion of  the  parties,  however  informal  or  obscure  the  lan- 
guage may  be;  and,  if  a  trust  can  fairly  be  implied  from 
the  language  used,  the  intention  will  be  executed  through 
the  medium  of  a  trust.10  The  equitable  maxim  that  "eq- 
uity regards  the  intention,  rather  than  the  form,"  is  thus 
applied;  and,  wherever  that  intention  is  apparent,  however 
rudely  expressed,  it  will  be  carried  into  effect.  But  there 
must  be  a  plain  manifestation  of  such  intention.  Loose 
and  equivocal  expressions  of  parties,  made  at  different  times 
and  on  different  occasions,  will  not  be  regarded.11 

Intentwn  to  Create  Trust  Evinced  by  Powers  Conferred  and 

Duties  Imposed  on  Trustees. 

The  intention  of  the  donor  to  create  a  trust  may  often 
be  inferred  from  the  powers  granted  to  the  trustee;  as 
where,  by  the  express  terms  of  a  will,  an  estate  is  apparently 
devised  to  the  beneficiaries,  but  by  its  terms  it  also  appears 
that  the  executors  are  required  to  perform  certain  duties 
which  are  necessarily  inconsistent  with  the  vesting  of  the 
legal  title  in  such  beneficiaries.  If  the  executors  of  a  will 
are  authorized  to  lease,  rent,  repair,  insure,  pay  taxes,  as- 
sessments, and  interest,  and  otherwise  manage  the  trust 
property,  and  pay  over  the  net  income  to  the  devisees  and 
legatees,  the  legal  estate  in  the  property  is  necessarily  con- 

•  Ileerrnans  v.  Burt,  78  N.  Y.  259;   Savage  v.  Burnbam,  17  N.  T. 
561. 

•  Hays  v.  Quay,  68  Pa.  263.    If  the  Intention  was  never  executed, 
either  by  conveyance,  change  of  possession,  or  In  any  other  manner, 
no  trust  Is  created.    Glrard  Trust  Co.  Y.  Mellor,  156  Pa.  589,  590,  27 
Atl.  662. 

10  Perry,  Trusts,  {  112. 

"  Steere  v.  Steere,  5  Johns.  Ch.  (N.  Y.)  1.  9  Am.  Dec.  256;  Bark- 
ley  v.  Lane's  Ex'r,  6  Bush  (Ky.)  587. 


§    163)  EXPRESS   TRUSTS.  367 

ferred  upon  the  executors,  and  an  express  active  trust  is 
created  in  them.12 

A  trust  may  also  be  inferred,  when  no  trust  is  declared 
in  terms,  by  directions  given  to  the  trustee  to  provide  for 
the  maintenance  of  the  donor's  family  or  children ;  as,  where 
a  devise  is  given  to  a  son,  with  the  direction  that  he  pro- 
vide for  his  mother  during  her  lifetime,  a  trust  is  created 
in  favor  of  the  mother.18 

Extent  of  Estate  as  Affected  by  Language. 

The  intent  of  the  settlor  as  to  the  quantity  or  quality  of 
the  estate  which  the  cestui  que  trust  is  to  take  should  be 
clearly  expressed,  but  it  is  not  necessary  that  the  technical 
words  required  to  limit  legal  estates  should  be  used.  An 
equitable  fee  may  be  created  without  the  use  of  the  word 
"heirs"  if  the  intention  to  give  a  fee  sufficiently  appears 
from  the  language  used.1*  The  extent  of  the  estate  which 
the  cestui  que  trust  is  to  take  is  sometimes  dependent  upon 
the  estate  given  the  trustee ;  as,  where  an  estate  is  devised  to 
the  use  of  a  man  and  his  heirs,  in  trust  for  another,  the  cestui 
que  trust  takes  the  equitable  fee.  The  entire  estate  passes 
to  the  trustee,  and  his  interest  under  the  trust  is,  in  equity, 
considered  the  interest  of  the  beneficiary.16  But  when  an 
estate  is  conveyed  by  a  deed  to  a  person  and  his  heirs  in 
trust  for  the  grantor  for  life,  and  after  his  death  upon  trust 
for  his  children,  without  using  the  words  "and  their  heirs," 
the  children  take  for  life  only.1* 

«  Tobias  v.  Ketchum,  32  N.  Y.  319,  327-331.  In  Bre water  v.  Strik- 
er, 2  N.  Y.  19,  the  testator  devised  his  real  estate  to  his  grand- 
children, and  then  provided  that  the  lands  should  not  be  sold,  but 
the  executors  should  lease  or  rent  them,  and  pay  the  rents  and 
profits  to  the  grandchildren,  and  it  was  held  that  the  executors 
were  trustees,  and  took  the  legal  estate.  See,  also,  Ferry  v.  Laible, 
81  N.  J.  Eq.  5G6;  Johnson  v.  Lawrence,  95  N.  Y.  154;  In  re  Denton, 
102  N.  Y.  200,  6  N.  B.  299. 

i»  In  re  Goodrich's  Estate,  38  Wis.  492.  And  see  Young  v.  Young, 
68  N.  O.  309;  Blouin  v.  Phaneuf,  81  Me.  176,  16  Atl.  540;  Bryan  v. 
Howland,  98  111.  625;  Smith  v.  Wildman,  37  Conn.  387;  Paisley'a 
Appeal,  70  Pa,  153. 

i*  Lewin.  Trusts,  108,  109;  Packard  T.  Railroad  Co.,  168  Mass. 
06,  46  N.  E.  433. 

IB  Lewin,  Trusts,  96;  Moore  v.  Cleghorn,  10  Beav.  423;  Knight  v. 
Belby,  3  Man.  &  G.  92. 

IB  Holliday  v.  Overton,  14  Beav.  467;  In  re  Whiston's  Settlement 
[1894]  1  Ch.  Dlv.  661;  Tatham  v.  Vernon,  29  Beav.  604, 


368  EQUITABLE    PROPERTY TRUSTS.  (Ch.   14 

SAME— PBECATOBY   WORDS. 

164.  Precatory  words  are  words  of  expectation, 
hope,  desire,  or  recommendation,  used  by  a 
donor  in  qualifying  an  absolute  gift. 

166.  In  the  earlier  cases  the  doctrine  as  to  preca- 
tory trusts  has  been  stated  as  follows: 
When  property  is  given  absolutely  to  any 
person,  and  the  same  person  is,  by  the 
giver,  who  has  power  to  command,  recom- 
mended, or  entreated,  or  wished  to  dispose 
of  that  property  in  favor  of  another,  the 
recommendation,  or  entreaty,  or  wish  shall 
be  held  to  create  a  trust 

(1)  If  the   words   are    so    used   that,    upon    the 

whole,  they  ought  to  be   construed  as  im- 
perative; 

(2)  If  the  subject  of  the  recommendation  or  wish 

be  certain;  and 

(3)  If  the  objects  or  persons  intended  to  have  the 

benefit  of  the  recommendation  or  wish  be 
also  certain.1 

166.  The  modern  rule  has  been  stated  thus:  In  or- 
der that  a  trust  may  arise  from  the  use  of 
precatory  -words,  the  court  must  be  satisfied 
from  the  words  themselves,  taken  in  connec- 
tion with  all  the  other  terms  of  the  disposi- 
tion, that  the  testator's  intention  to  create 
an  express  trust  was  as  full,  complete,  set- 
tled, and  sure  as  though  he  had  given  the 

ft  164-166.  *  Knight  v.  Knight,  3  Beav.  148,  per  Lord  Langdale, 
Mr.  Pomeroy  says:  "With  respect  to  the  essential  elements  which 
must  exist  In  every  precatory  trust,  it  is  impossible  to  add  anything 
to  the  clear  and  accurate  statement  of  Lord  Langdale  In  the  case  of 
Knight  T.  Knight."  Pom.  Eq.  Jur.  J  1016. 


§§    164-166)  EXPRESS    TRUSTS.  369 

property  to  hold   upon  a  trust  declared  in 
express  terms  in  the  ordinary  manner.1 

The  doctrine  of  precatory  trusts  is  not,  in  the  light  of 
modern  cases,  a  favored  one.  Many  able  judges  have  dis- 
sented from  it  on  principle.  There  is  a  present  general 
tendency  in  all  courts  to  restrict  its  operation  within  rea- 
sonable bounds.  The  evident  danger  in  the  application  of 
the  doctrine  lies  in  the  natural  tendency  to  clothe  the  vague 
recommendations  and  desires  of  the  testator  with  the  im- 
perative character  of  an  expressed  trust,  and  thus  extend 
their  meaning  and  purpose  beyond  their  real  intent.  On 
the  other  hand,  an  entire  disregard  of  the  doctrine  would, 
in  effect,  compel  the  creation  of  a  trust  by  the  use  of  defi- 
nite and  technical  expressions.  The  most  that  can  be  de- 
sired in  any  case  where  precatory  words  are  in  question  is 
a  determination  of  the  real  intent  of  the  testator.  This  can 
be  best  attained  by  an  examination  of  the  context  of  the 
instrument.  Whether  precatory  words  in  a  will  are  to  be 
accorded  such  force  as  to  deprive  the  donee  of  the  absolute 
right  of  disposal,  and  thereby  qualify  the  beneficial  interest 
in  the  gift,  must  be  determined  in  connection  with  what  may 
be  gathered  from  the  rest  of  the  will  as  an  intention  which 
would  be  reconcilable  with  the  idea  of  a  trust  imposed  upon 
the  legal  estate.  Where  to  impose  such  a  trust  would  be 
to  nullify  previous  expressions  in  a  will,  and  to  create  a 
repugnancy  between  its  different  parts,  then  the  rules  of 
construction  forbid  the  attempt.8  It  does  not  seem  ad- 
visable to  attempt  a  classification  of  all  the  cases  involving 
a  consideration  of  this  difficult  question.  There  is  an  ap- 
parent conflict  in  the  decisions  of  the  several  courts  in  this 
country,  which  does  not  admit  of  a  satisfactory  explanation. 
Quite  often  vthe  same  precatory  words  have  received  op- 
posite constructions  from  different  courts  in  the  same  state. 
Each  case  must  be  decided  in  view  of  its  own  particular 
circumstances.  The  courts  will  endeavor  to  ascertain  the 
donor's  intention,  not  only  from  the  precatory  words  them- 
ielves,  but  from  the  context  of  the  instrument.4 

a  Pom.  Eq.  Jur.  §  1016. 

•  Clay  v.  Wood,  153  N.  Y.  134,  142,  47  N.  E.  274. 

*  In  re  Adams  &  Kensington  Vestry,  27  Ch.  Div.  394;    Colton  r. 
Colton,  127  U.  S.  300,  8  Sup.  Ct  1164,  32  L.  Ed.  138;    Foose  v. 

EATON.EQ.— 24 


870  EQUITABLE   PROPERTY TRUSTS.  (Ch.  14 


SAME— ENFORCEMENT  OF  VOLUNTARY  TRUSTS. 

167.  A  valid  trust  may  be  created  without  valu- 

able consideration.  If  the  trust  has  been 
completely  declared,  the  absence  of  con- 
sideration is  immaterial. 

168.  A  voluntary  trust  will  be  enforced  if 

(1)  It  is  created  by  will;  or 

(2)  The  settlor  has  transferred  the  trust  prop- 

erty to  a  trustee ;  or 

(3)  The  settlor  has  retained  the  title  to  the  trust 

estate,  and  declared  himself  a  trustee  for 
the  purposes  of  the  trust.1 

183.  If  there  is  a  mere  intention  of  creating  a  trust 
or  a  mere  voluntary  agreement  to  do  so, 
and  the  settlor  himself  contemplates  some 
further  act  to  complete  the  trust,  equity 
will  not  enforce  it,  or  aid  in  its  enforce- 
ment. 

Where  there  is  a  valuable  consideration,  and  a  trust  is 
intended  to  be  created,  formalities  are  of  minor  importance ; 

Whltmore,  82  N.  Y.  405,  37  Am.  Rep.  572;  Phillips  v.  Phillips,  112  N. 
Y.  197.  19  N.  E.  411,  8  Am.  St.  Rep.  737;  Elliott  v.  Elliott,  117  Ind. 
380,  20  N.  E.  204,  10  Am.  St.  Rep.  54;  Hess  v.  Singler,  114  Mass.  56. 
The  following  cases  are  adverse  to  the  creation  of  a  trust  by  the  use 
of  precatory  words:  ("Recommend")  In  re  Whltcomb's  Estate,  80 
Cal.  205,  24  Pac.  1028;  Van  Gorder  v.  Smith,  99  Ind.  404;  ("I  re- 
quest *  *  *,  but  neither  of  them  is  under  responsibility  to  any 
court  to  do  so")  Bacon  v.  Ransom,  139  Mass.  117,  29  N.  E.  473;  ("I 
make  this  only  as  a  request,  for  I  feel  that  her  own  kind  heart  will 
prompt  her  to  do  so  without")  Sale  v.  Thornberry,  86  Ky.  206,  5  S. 
W.  408;  ("I  expect  and  I  desire  that  my  wife  will  not  dispose  of  said 
estate  in  such  a  manner")  In  re  Gardner,  140  N.  Y.  122,  35  N.  E.  439. 
In  Pennsylvania  the  doctrine  of  precatory  words  has  been  very  re- 
luctautly  applied.  In  re  Pennock's  Estate,  20  Pa.  2(58,  59  Am.  Dec. 
718;  Beck's  Appeal,  46  Pa.  527;  Palsley's  Appeal,  70  Pa.  153;  Boyle 
T.  Boyle.  152  Pa.  108,  25  Atl.  494,  34  Am.  St.  Rep.  629;  Good  v.  Fich- 
thorn,  144  Pa,  287.  22  Atl.  1032,  27  Am.  St.  Rep.  630. 
H  167-169.  i  Mllroy  v.  Lord,  4  De  Gex,  F.  &  J.  204. 


§§    167-169)  EXPRESS    TRUSTS.  371 

for  equity  regards  the  substance,  and  not  the  form,  and, 
considering  that  as  done  which  ought  to  be  done,  will  carry 
into  effect  a  trust,  if  value  has  been  given,  however  rudely 
created.2  Thus  a  deed  of  trust,  based  on  value,  which  omits 
the  trustee's  name,  will  be  reformed,  and  a  proper  trustee 
appointed,  and  his  name  inserted.8  The  same  principle  ap- 
plies to  wills  where  a  consideration  is  implied.  For  in- 
stance, where  a  testator  directs  a  sale  of  his  real  estate, 
and  a  distribution  of  the  proceeds  among  certain  persons, 
but  fails  to  appoint  a  trustee  to  make  the  sale  and  the 
distribution,  the  land  will  descend  to  the  heir;  but  he  will 
be  regarded  in  equity  as  the  trustee,  and  will  be  compelled 
to  execute  the  trust.4 

Enforcement  of  Voluntary  Trusts. 

In  the  case  of  voluntary  trusts,  not  created  by  will,  the 
form  of  the  transaction  becomes  important.  To  constitute 
a  valid  and  effectual  trust  enforceable  in  equity,  the  settlor 
must,  either  by  direct  transfer  or  express  declaration,  have 
done  everything  that  was  necessary  to  transfer  the  property, 
and  render  the  transaction  binding.  If  the  transaction  does 
nothing  more  than  evince  an  intention  to  create  a  trust, 
and  there  is  no  valuable  consideration,  courts  of  equity  -will 
not  enforce  the  trust,  or  aid  in  its  enforcement;  for  an 
intention  to  make  a  gift  is  nudum  pactum,  and  of  no  bind- 
ing force,  either  at  law  or  in  equity.6  If,  however,  the 

»  Lewin,  Trusts,  p.  67. 

«  Burnside  v.  Wayman,  49  Mo.  356. 

4  Lewin,  Trusts,  p.  141. 

«  The  act  constituting  the  transfer  must  be  consummated,  and 
not  remain  incomplete,  or  not  in  mere  Intention;  and  this  is  the  rule 
whether  the  gift  is  by  delivery  only,  or  by  the  creation  of  a  trust  In 
a  third  person,  or  in  creating  the  donor  himself  a  trustee.  In  Stone 
v.  Hackett,  12  Gray  (Mass.)  227,  it  was  said:  "It  is  certainly  true 
that  a  court  of  equity  will  lend  no  assistance  towards  perfecting  a 
voluntary  contract  or  agreement  for  the  creation  of  a  trust,  nor 
regard  it  as  binding  so  long  as  it  remains  executory.  But  it  is  equal- 
ly true  that  if  such  a  contract  be  executed  by  a  conveyance  of  prop- 
erty in  trust,  so  that  nothing  remaJns  to  be  done  by  the  grantor  or 
donor  to  complete  the  transfer  of  title,  the  relation  of  trustee  and 
cestui  que  trust  is  deemed  to  be  established,  and  the  equitable  rights 
and  interests,  arising  out  of  the  conveyance,  though  made  without 
consideration,  will  be  enforced  in  chancery."  See,  also,  on  the  gen- 
eral subject,  Allen  v.  Withrow,  110  U.  S.  130,  3  Sup.  Ct  517,  28  L. 


372  EQUITABLE  PROPERTY TRUSTS.         (Ch.  14 

declaration  of  trust  is  perfect  and  complete,  equity  will  en- 
force it,  though  there  is  no  consideration ;  for  a  person 
sui  juris,  acting  freely,  and  with  full  knowledge,  has  the 
power  to  make  a  voluntary  gift  of  the  whole  or  any  part 
of  his  property.6 

As  stated  in  the  black-letter  text,  a  voluntary  trust  will 
be  enforced  where  the  settlor  has  transferred  the  trust  prop- 
erty to  a  third  person  as  trustee.  If  the  trust  property  is 
a  legal  estate,  capable  of  transfer  and  delivery,  there  is  no 
perfect  trust  unless  the  legal  interest  is  transferred  to  and 
vested  in  the  trustee  for  the  purposes  of  the  trust.  It  is 
not  enough  that  the  settlor  executed  a  deed  purporting  to 
pass  the  legal  interest,  and  that  he  believed  nothing  to  be 
wanting  to  give  effect  to  the  transaction.  The  intention  of 
devesting  himself  of  the  legal  estate  must  in  fact  be  exe- 
cuted, or  the  court  will  not  recognize  the  trust.7  As  an 
instance  of  the  application  of  this  rule,  if  the  settlor  exe- 
cute a  deed  in  trust  of  stock  in  a  corporation,  which  can 
only  be  legally  transferred  by  assignment  on  the  backs  of 


Ed.  90;  Beaver  v.  Beaver,  117  N.  Y.  421,  22  N.  E.  940,  6  L.  R.  A.  403, 
15  Am.  St.  Rep.  531;  Keyes  v.  Carleton,  141  Mass.  49,  6  N.  E.  524; 
H<?llman  v.  McWilliams,  70  Gal.  449,  11  Pac.  659. 

«  Martin  v.  Funk,  75  N.  Y.  134,  137,  31  Am.  Uep.  446;  Young  v. 
Young,  SO  N.  Y.  422,  436,  36  Am.  Rep.  634.  In  Richards  v.  Delbridge, 
L.  R.  18  Eq.  11,  13,  Sir  George  Jessel,  M.  R.,  said:  "The  principle  is 
a  very  simple  one.  A  man  may  transfer  his  property  without  valu- 
able consideration  In  one  of  two  ways:  He  may  either  do  such 
acts  as  amount  In  law  to  a  conveyance  or  assignment  of  the  prop- 
erty, and  thus  completely  devest  himself  of  the  legal  ownership,  in 
which  case  the  person  who  by  those  acts  acquires  the  property 
takes  it  beneficially  or  on  trust,  as  the  case  may  be;  or  the  legal 
owner  of  the  property  may,  by  one  or  other  of  the  modes  recog- 
nized as  amounting  to  a  valid  declaration  of  trust,  constitute  him- 
self a  trustee,  and,  without  an  actual  transfer  of  the  legal  title,  may 
so  deal  with  the  property  as  to  deprive  himself  of  Its  legal  owner- 
ship, and  declare  that  he  will  hold  it  from  that  time  forward  on 
trust  for  the  other  person."  In  re  Webb's  Estate,  49  Cal.  541,  545, 
Crockett,  J.,  said:  "In  such  cases  the  point  to  be  determined  is 
whether  the  trust  has  been  perfectly  created,— that  is  to  say,  wheth- 
er the  title  has  passed,  and  the  trust  been  declared;  and,  the  trust 
being  executed,  nothing  remains  for  the  court  but  to  enforce  it." 
See.  also,  Milroy  v.  Lord,  4  De  Gex,  F.  &  J.  264,  274;  Kekewich  v. 
Manning,  1  De  Gex,  M.  &  G.  176. 

i  Lewin,  Trusts,  p.  70;  Ellison  v.  Ellison,  6  Ves.  602;  Garrard  v. 
Lauderdale,  2  Russ.  &  M.  452. 


§§  167-169)  EXPRESS  TRUSTS.  373 

the  certificates  and  on  the  books  of  the  corporation,  the 
deed,  if  voluntary,  will  not  create  a  trust  which  the  court 
will  enforce,  unless  the  stocks  are  actually  transferred  in 
fact.8  Where  the  legal  title  is  not  assignable,  the  rule 
seems  to  be  that,  if  the  settlor  make  all  the  assignment  of 
property  in  his  power,  and  perfect  the  transaction  as  far  as 
the  law  permits,  equity  will  recognize  the  act,  and  support 
the  validity  of  the  trust.9  But,  if  part  of  the  property  be 
capable  of  delivery  and  transfer,  and  part  of  it  incapable 
of  delivery,  and  that  which  might  have  been  legally  assigned 
and  delivered  is  not  so  assigned  and  delivered,  no  trust  is 
created.10  If  the  subject  of  the  trust  is  an  equitable  in- 
terest, the  owner  thereof  may  create  a  valid  trust  by  exe- 
cuting an  assignment  of  the  interest  to  a  trustee,  notwith- 
standing the  fact  that  the  legal  title  is  vested  in  another.11 

If  the  settlor  proposes  to  convert  himself  into  a  trustee, 
the  trust  is  perfectly  created,  and  will  be  enforced,  upon 
the  execution  by  the  settlor  of  a  clear  and  explicit  decla- 
ration of  trust,  intended  to  be  final,  and  binding  upon  him ; 
and  this  is  so  whether  the  nature  of  the  property  be  legal 
or  equitable,  and  whether  it  be  capable  or  incapable  of  trans- 

«  Garrard  v.  Lauderdale,  2  Russ.  &  M.  451;  Ellison  v.  Ellison,  6 
Ves.  6G2,— where  Lord  Eldon  said:  "I  take  the  distinction  to  be  that, 
if  you  want  the  assistance  of  the  court  to  constitute  you  cestui 
que  trust,  and  the  instrument  Is  voluntary,  you  shall  not  have  that 
assistance  for  the  purpose  of  constituting  you  cestui  que  trust;  as 
upon  a  covenant  to  transfer  stock,  etc.,  if  it  rests  in  covenant,  and  is 
purely  voluntary,  this  court  will  not  execute  the  voluntary  covenant; 
but,  if  the  party  has  completely  transferred  stock,  etc.,  though  It  is 
voluntary,  yet,  the  legal  conveyance  being  effectually  made,  the 
equitable  interest  will  be  enforced  by  this  court." 

»  Kekewich  (v.  Manning,  1  De  Gex,  M.  &  G.  187,  188.  In  this  case 
Lord  Justice  Knight  Bruce  observed:  "It  is  upon  legal  and  equita- 
ble principles,  we  apprehend,  clear,  that  a  person  sui  juris,  acting 
truly  and  fairly  and  with  sufficient  knowledge,  ought  to  have  and 
has  it  in  his  power  to  make,  in  a  binding  and  effectual  manner,  a 
voluntary  gift  of  any  part  of  his  property,  whether  capable  or  inca- 
pable of  manual  delivery,  whether  in  possession  or  in  reversion,  or 
howsoever  circumstanced."  And  see  Fortescue  v.  Baraett,  3  Mylne 
&  K.  36;  Roberts  v.  Lloyd,  2  Beav.  376;  Elliot's  Ex'rs'  Appeal,  50 
Pa.  75. 

i">  Perry,  Trusts,  §  101;  Richardson  v.  Richardson,  L.  R.  3  Eq.  686. 

n  Lewin,  Trusts,  p.  72;  Sloane  v.  Cadogan,  cited  in  Sugd.  Vend. 
719;  Voyle  v.  Hughes,  2  Smale  &  G.  18;  Gannon  v.  White,  2  Ir. 
Ch.  207. 


374  EQUITABLE   PROPERTY TRUSTS.  (Ch.   11 

fer."  Thus,  where  one  deposits  money  in  a  bank  in  trust 
for  another,  and  the  account  is  so  entered  in  the  books  of 
the  bank  and  in  the  pass  book  delivered  to  the  depositor, 
a  perfect  trust  is  created,  which  will  be  enforced,  although 
the  pass  book  remained  in  the  possession  of  the  depositor, 
and  the  cestui  que  trust  was  ignorant  of  the  deposit  until 
after  the  depositor  s  death.18 

These  cases  are  to  be  carefully  distinguished  from  those 
where  the  donor  attempts  to  make  an  absolute  gift  of  prop- 
erty by  transferring  the  legal  title  directly  to  the  donee, 
and  the  gift  proves  to  be  ineffective  because  all  acts  requisite 
to  the  passing  of  title  have  not  been  performed  by  the 
donor, — such  as  the  execution  and  delivery  of  a  valid  deed 
in  case  of  real  property,  and  the  execution  of  a  valid  as- 
signment and  delivery  of  possession  in  the  case  of  personal 
property.  It  is  established  as  unquestionable  law  that  a 
court  of  equity  cannot,  by  its  authority,  render  that  gift 
perfect  which  the  donor  has  left  imperfect,  and  cannot  con- 
vert an  imperfect  gift  into  a  declaration  of  trust  merely 
on  account  of  that  imperfection.14  As,  where  an  intended 
gift  of  bonds  proves  ineffectual  because  the  donor  retains 
possession  for  the  purpose  of  collecting  the  interest  during 
his  lifetime,  the  transaction  cannot  be  sustained  as  a  decla- 
ration of  a  trust,  though  the  intention  to  make  the  gift  is 
clearly  manifested.16  And  also  where  the  payee  of  prom- 
issory notes  states  to  his  nephew,  "I  will  give  you  these 
notes,"  and  indorses  them,  "I  bequeath, — pay  the  within 
contents  to  [the  nephew]  or  his  order,  at  my  death,"  but 

12  Ex  pnrte  Pye.  18  Ves.  140;  Crawford's  Appeal,  61  Pa.  52;  Dick- 
erson's  Appeal,  115  Pa.  198.  8  Atl.  64,  2  Am.  St.  Rep.  547. 

i«  Martin  v.  Funk,  75  N.  Y.  134,  31  Am.  Rep.  446;  Minor  v.  Rogers. 
40  Conn.  512,  10  Am.  Rep.  69;  Sayre  v.  Well,  94  Ala.  4(58.  10  South. 
546,  15  L.  R.  A.  544.  And  the  trust  exists  although  the  depositor 
retains  the  right  to  draw  Interest.  Gerrisb  v.  Institution.  128  Mass. 
151),  35  Am.  Rep.  370;  Willis  v.  Smyth,  91  N.  Y.  297.  There  must  be 
some  act  to  show  intent  to  create  trust,  unless  pass  book  is  deliv- 
ered or  notice  Is  given  to  beneficiary.  Connecticut  River  Sav. 
Bank  v.  Albee'g  Estate,  64  Vt.  571,  25  Atl.  487;  Scott  v.  Bank,  140 
Mass.  157,  2  N.  E.  925. 

>*  Young  v.  Young,  80  N.  Y.  422,  437,  36  Am.  Rep.  634,  per  Rapal- 
lo,  J.  See,  also,  Jones  v.  Lock,  1  Ch.  App.  25;  Milroy  v.  Lord,  4  De 
Gex,  F.  &  J.  264;  Richards  v.  Delbridge,  L.  R.  18  Eq.  11;  Beaver  v. 
Beaver,  117  N.  Y.  421,  22  N.  E.  940,  6  L.  R.  A.  403. 

«  Young  y.  Young,  80  N.  Y.  422,  36  Am.  Rep.  634. 


§§   170-171)  EXPRESS    TRUSTS.  375 

does  not  deliver  the  possession,  and  retains  them  in  his 
custody  until  his  death,  the  nephew  obtains  no  right  in  the 
notes.18  In  Richards  v.  Delbridge,"  Jessel,  M.  R.,  said: 
"The  true  distinction  appears  to  me  to  be  plain  and  beyond 
dispute.  For  a  man  to  make  himself  a  trustee,  there  must 
be  an  expression  of  intention  to  become  a  trustee ;  whereas 
words  of  present  gift  show  an  intention  to  give  other  prop- 
erty to  another,  and  not  to  retain  it  in  the  donor's  hands 
for  any  purpose,  fiduciary  or  otherwise." 

SAME— OBJECTS   OF  TRUSTS. 

170.  A  trust  which  has  for  its  object  the  contraven- 

tion of  the  policy  of  the  law,1  or  which  is 
created  for  an  unlawful  or  fraudulent  pur- 
pose, will  not  be  enforced  in  equity  in  favor 
of  the  parties  to  be  benefited  thereby,  nor 
•will  equity  aid  the  settlor  to  recover  the 
estate.2 

171.  The  following  are  instances  of  illegal  trusts: 
(a)  For    unreasonable   accumulations    restricting 

the  power  of  alienation. 

i«  Mitchell  v.  Smith,  4  De  Gex,  J.  &  S.  422. 

IT  L.  R.  18  Eq.  11,  13. 

§§  170. 171.  i  Lewin,  Trusts,  p.  94;  Attorney  General  v.  Pearson, 
3  Mer.  393;  Lemmond  v.  Peoples,  41  N.  C.  137. 

2  Cottington  v.  Fletcher,  2  Atk.  155;  Muckleston  v.  Brown,  6  Ves. 
68;  Ford's  Ex'rs  v.  Lewis,  10  B.  Mon.  (Ky.)  127.  The  authorities 
are  not  uniform  as  to  whether  or  not  equity  will  interfere  in  favor 
of  the  settlor;  where  the  object  of  the  trust  is  illegal  and  fraudulent. 
Thus,  in  Leuimond  v.  Peoples,  41  N.  C.  137,  a  conveyance  of  slaves 
in  trust  to  emancipate  them  was  held  a  violation  of  the  laws  of  the 
state,  and  a  trust  was,  therefore,  declared  to  result  in  favor  of  the 
settlor.  In  Ownes  v.  Ownes,  23  N.  J.  Eq.  60,  land  had  been  convey- 
ed in  trust  to  reconvey  to  the  settlor  or  any  person  whom  she 
should  appoint.  The  object  of  the  conveyance  was  to  defraud  the 
settlor's  creditors.  On  a  bill  by  the  settlor  to  compel  a  reconvey- 
ance of  the  legal  estate  by  the  trustee  it  was  held  that  the  maxim 
"in  pari  delicto,"  etc.,  did  not  apply,  because  the  equitable  estate 
was  actually  vested  in  the  settlor,  and  the  case  was,  therefore,  on 
the  same  footing  as  if  the  legal  estate  had  already  been  reconveyed. 
It  would  seem  that  in  all  such  cases  the  maxim,  "He  who  comes  into 
equity  must  come  with  clean  hands,"  ought  to  apply. 


376  EQUITABLE    PROPERTY TRUSTS.  (Ch.   14 

Cb)  In  derogation  of  the  rights  of  creditors. 

(c)  Against   statutes  of   mortmain,    or   those    in 

regard  to  aliens. 

(d)  Promoting  or  encouraging  immorality,  fraud, 

or  dishonesty. 

(e)  In  restraint  of  marriage. 

In  addition  to  the  preceding  principles  involving  the  ques- 
tions as  to  what  parties,  language,  and  consideration  are 
essential  for  the  creation  of  a  valid  trust,  we  have  yet  to 
consider  what  constitutes  legal  and  illegal  objects  of  trusts. 
Equity  will  not  sustain  a  trust  that  contravenes  the  policy 
of  the  law,  or  is  in  violation  of  statute.  Trusts  which  pro- 
vide for  the  accumulation  of  income,  unless  for  the  benefit 
of  minors  during  their  minority,  are  quite  generally  op- 
posed to  specific  statutory  enactments,  and,  in  any  event, 
in  contravention  of  the  settled  policy  of  the  law.  The  same 
may  be  said  in  respect  to  trusts  which  unlawfully  or  un- 
reasonably suspend  the  power  of  alienation,  or  which  are 
opposed  to  the  law  against  perpetuities.  It  does  not  seem 
necessary  in  a  work  of  this  character  to  treat  extensively 
of  the  subject  of  trusts  for  accumulation  of  incomes  or  in 
suspension  of  the  power  of  alienation.8 

A  trust  which  would  tend,  by  its  execution,  to  promote 
immorality,  will  not  be  enforced ;  as,  where  a  settlement  of 
property  is  made  in  trust  for  illegitimate  children  to  be 
thereafter  born.4  And  trusts  which  are  for  the  purpose  of 
promulgating  atheism,  infidelity,  or  hostility  to  the  existing 
forms  of  government  cannot  be  enforced  in  equity.1 

»  See  Perry,  Trusts,  c.  13. 

«Medworth  v.  Pope,  27  Bear.  71;  Occleston  v.  Fullalore,  9  Ch. 
App.  147. 

»  Zelswelss  v.  James,  G3  Pa.  465,  3  Am.  Rep.  558,  was  where  a  de- 
rise  was  made  to  "The  Infidel  Society  of  Philadelphia,"  and  the 
court  intimated  that  the  devise  was  void  because  an  insult  to  the 
popular  religion  of  the  country;  an  Insult  of  such  a  nature  as  to 
be  indictable  as  "directly  tending  to  disturb  the  public  peace."  In 
Jackson  r.  Phillips,  14  Allen  (Mass.)  539,  the  court  adopts  the  rule 
that  trusts  directed  at  existing  institutions  of  laws  or  the  frame  of 
government  are  void.  See,  also,  George  r.  Braddock,  45  N.  J.  Eq. 
757,  18  AtL  881,  6  L.  R.  A.  511,  14  Am.  St.  Rep.  754,  where  a  trust  to 
"spread  the  light"  of  the  doctrines  of  Henry  George  was  declared 
roid  as  calling  in  question  fundamental  rules  of  government. 


§§  170-171)  EXPRESS  TRUSTS.  377 

There  is  a  pronounced  conflict  of  authority  as  to  whether 
a  trust  may  be  created  containing  provisions  that  the  estate 
shall  not  be  subjected  to  liability  for  the  debts  and  other 
engagements  of  the  beneficiary.  These  trusts  are  com- 
monly termed  "spendthrift  trusts,"  and  have  been  almost 
invariably  upheld  by  the  courts  of  Pennsylvania,  and  in  the 
courts  of  some  of  the  other  states.6  On  the  other  hand, 
there  are  a  number  of  cases  which  follow  the  English  rule, 
to  the  effect  that  a  proviso  in  a  trust  that  the  interest  of 
the  cestui  que  trust  shall  not  be  liable  to  the  claims  of 
creditors  is  void.7  In  New  York  it  is  provided  by  statute 
that,  where  a  trust  is  created  to  receive  rents  and  profits 
of  real  property,  and  no  valid  direction  for  accumulation  is 
given,  the  surplus  of  such  rents  and  profits  beyond  the  sum 
necessary  for  the  education  and  support  of  the  beneficiary 
shall  be  liable  to  the  claims  of  his  creditors  in  the  same 
manner  as  other  personal  property.* 

Trusts  Illegal  in  Part. 

But  a  void  trust,  which  is  separable  from  other  valid 
trusts,  may  be  cut  off  when  the  trust  thus  defeated  is  in- 
dependent of  the  other  dispositions  of  the  will,  and  subor- 
dinate to  them,  and  not  an  essential  part  of  the  general 
scheme.*  In  cases  where  a  part  of  an  estate  is  given  upon 
a  valid  trust  and  part  upon  an  invalid  trust,  two  rules  have 
been  laid  down:  (i)  If  an  ascertainable  portion  of  a  fund 
or  estate  be  given  on  a  void  trust,  and  the  residue  on  a 

•  Girard  Life  &  Trust  Co.  v.  Chambers,  46  Pa.  486;    Keyser  v. 
Mitchell,  67  Pa.  473;  Philadelphia  Trust  Co.  v.  Guillon,  100  Pa.  254; 
Broadway  Nat.  Bank  v.  Adams,  133  Mass.  170,  43  Am.  Rep.  504; 
Nichols  v,  Eaton,  91  U.  S,  716,  23  L.  Ed.  254;   Hyde  v.  Woods,  94  U. 
S.  34,  24  L.  Ed.  264;   Lampert  v.  Haydel,  96  Mo.  450,  9  S.  W.  780,  2 
L.  R.  A.  113.     But  see  Hahn  y.  Hutchinson,  159  Pa.  133,  28  Atl.  167. 

i  Tillinghast  v.  Bradford,  5  R.  I.  205;  Mandelbaum  v.  McDonell, 
29  Mich.  78,  18  Am.  Rep.  61;  Blackstone  Bank  v.  Davis,  21  Pick. 
(Mass.)  42,  32  Am.  Dec.  241.  And  see  the  following  English  cases: 
Younghusband  v.  Gisborne,  1  Colly.  400;  Green  v.  Spicer,  1  Russ.  & 
M.  395;  Graves  v.  Dolphin,  1  Sim.  66;  Snowdon  v.  Dales,  6  Sim.  524. 

•  Real  Property  Law  (Laws  1896,  c.  547)  §  78;  Williams  v.  Thorn, 
70  N.  Y.  270. 

•  Manice  v.  Manice,  43  N.  Y.  303,  384;    Knox  v.  Jones,  47  N.  Y. 
889;   Culross  v.  Gibbons,  130  N.  Y.  447,  29  N.  E.  839;   Sears  v.  Put- 
nam, 102  Mass.  9;   Bristol  v.  Bristol,  53  Conn.  242,  5  AtL  687;    An. 
drews  v.  Rice,  53  Conn.  566,  5  AtL  823. 


378  EQUITABLE  PROPERTY TKU81.  (Lii.  i -i 

good  trust,  the  residue  has  the  benefit  of  a  failure  of  the 
trust ;  (2)  if  an  unascertainable  portion  be  given  upon  a  void 
trust,  and  the  residue  upon  a  valid  trust,  the  whole  fails.10 

Legislation  in  New  York  and  Other  States. 

In  conclusion  it  should  be  observed  that  statutes  in  many 
of  the  states  have  greatly  restricted  the  objects  for  which 
trusts  may  be  created.  Statutes  in  New  York,11  substan- 
tially re-enacted  in  Michigan,12  Wisconsin,18  Minnesota,14 
California,15  and  the  Dakotas,16  prohibit  the  creation  of  ex- 
press trusts,  except  for  the  following  purposes:  (i)  To  sell 
real  property  for  the  benefit  of  creditors ;  (2)  to  sell,  mort- 
gage, or  lease  real  property  for  the  benefit  of  annuitants  or 
other  legatees,  or  for  the  purpose  of  satisfying  any  charge 
thereon ;  (3)  to  receive  the  rents  and  profits  of  real  property, 
and  apply  them  to  the  use  of  any  person  during  the  life  of 
.that  person,  or  for  any  shorter  term,  subject  to  the  pro- 
vision of  law  relating  thereto ;  (4)  to  receive  the  rents  and 
profits  of  real  property,  and  to  accumulate  the  same  for 
the  purposes,  and  within  the  limits  prescribed  by  law, — 
that  is.  for  the  benefit  of  minors  then  in  being,  and  during 
their  minority.  Where  a  trust  is  created  for  any  other  pur- 
pose, no  estate  vests  in  the  trustee;  but  a  trust  which  di- 
rects or  authorizes  the  performance  of  any  act  which  may 
be  lawfully  performed  under  a  power  is  valid  as  a  power 
in  trust.17  The  statutes,  however,  apply  only  to  real  estate, 
and  trusts  in  personal  property  are  not  affected  thereby.18 

EXECUTED  AND  EXECUTORY  TRUSTS. 

172.  For  the  purposes  of  construction  and  interpre- 
tation, trusts  are  either  executed  or  execu- 
tory. An  executed  trust  is  one  -where  no 

>•  Kelly  T.  Nichols,  17  R.  I.  306,  21  Atl.  906. 
11  Real  Property  Law  (Laws  1896,  c.  547)  i  76  (former  1  Rev.  St 
pt.  2,  c..l.  tit  2.  I  ">:». 

122  How.  Ann.  St  1883.  c.  214.  §  11. 

«  1  S.-inli.  &  B.  Ann.  St.  1898,  §  2081. 

*«  Gen.  St  1878,  p.  553,  §  11. 

>•  Civ.  Code.  §  8T>7. 

»•  Civ.  Code  1880,  p.  243.  §  282. 

»*  New  York  Real  Property  Law  (Laws  1896.  c.  547)  §  79. 

»•  Giliuau  v.  McArdle,  99  N.  Y.  451,  2  N.  E.  404,  52  Am.  Rep.  41. 


§§    172-174)       EXECUTED  AND  EXECUTORY  TRUSTS.  379 

act  is  necessary  to  be  done  to  give  it  effect, 
since  its  terms  and  limitations  are  com- 
pletely and  perfectly  declared  by  the  in- 
strument creating  it,  and  no  further  act  is 
required  to  give  it  effect. 

173.  An  executory  trust  is   one   -where  the  scheme 

of  the  trust  has  been  imperfectly  declared 
at  the  outset,  and  the  creator  of  the  trust 
has  merely  denoted  his  ultimate  object,  im- 
posing on  the  trustee  or  on  the  court  the 
duty  of  effectuating  it  in  the  most  con- 
venient -way.1 

174.  In  the  construction  of  executed  trusts,  techni- 

cal trusts  are  construed  in  their  legal  and 
technical  sense.  In  the  construction  of  ex- 
ecutory trusts  a  court  of  equity  is  not 
bound  to  the  technical,  legal  meaning  of 
the  language  employed  by  the  settlor;  but 
•where  a  technical  construction  of  such  lan- 
guage would  defeat  the  obvious  intent  of 
the  settlor,  as  gathered  from  the  motives  of 
the  trust,  its  general  objects  and  purposes, 
or  from  any  other  attendant  circumstance, 
the  court  -will  direct  an  executed  trust  to  be 
made  in  a  proper  and  legal  manner  in  con- 
formity -with  the  intent  of  the  parties. 
% 

To  avoid  confusion  and  misconception,  it  is  well  to  call 
attention  to  the  fact  that  a  trust  is  not  executory  because  the 
trustee  is  therein  directed  to  perform  some  duty  with  re- 
spect to  the  property  which  is  the  subject  of  the  trust.  The 
essence  of  an  executory  trust  does  not  consist  in  acts  di- 
rected to  be  done  by  the  trustee  with  respect  to  the  prop- 
erty, but  in  acts  directed  to  be  done  perfecting  and  complet- 

§§  172-174.     i  Adams,  Eq.  127  (40). 


380  EQUITABLE    PROPEBTY TRUSTS.  (Ch.    14 

ing  the  trust  itself,  which  was  not  fully  declared  in  the  origi- 
nal instrument  of  creation.* 

The  following  much-quoted  observation  of  Lord  St.  Leon- 
ards is  instructive  as  indicating  the  distinction  between  exe- 
cuted and  executory  trusts :  "All  trusts  are  in  a  sense  ex- 
ecutory, because  there  is  always  something  to  be  done. 
But  that  is  not  the  sense  which  a  court  of  equity  puts  upon 
the  term  'executory  trust.'  A  court  of  equity,  in  consid- 
ing  an  executory  trust,  as  distinguished  from  an  executed 
trust,  distinguishes  the  two  in  this  manner:  Has  the  tes- 
tator been  what  is  called,  and  very  properly  called,  his  own 
conveyancer?  Or  has  he,  on  the  other  hand,  left  it  to  the 
court  to  make  out  from  general  expressions  what  his  inten- 
tion' is  ?  If  he  has  so  defined  that  intention  that  you  have 
nothing  to  do  but  to  take  the  limitations  he  has  given  you, 
and  to  convert  them  into  legal  estates,  then  the  trust  is  exe- 
cuted, but  otherwise  it  is  executory."  8  The  distinction  be- 
tween executed  and  executory  trusts  is  one  of  interpretation 
and  construction,  and  is  directly  traceable  to  a  desire  to  ob- 
viate the  consequences  of  the  extremely  technical  doctrine 
of  the  rule  in  Shelley's  Case.4 

Cases  arising  under  marriage  settlements  offer  very  good 
illustrations  of  the  distinction  in  the  interpretation  of  exe- 
cuted and  executory  trusts.  An  actual  conveyance  to  trus- 
tees in  trust  for  the  intended  husband  for  life,  with  remain- 
der in  trust  for  the  heirs  of  his  body,  is  an  executed  trust ; 
and  the  technical  terms  therein  will  be  given  their  technical 
meaning,  with  the  result  that,  under  the  rule  in  Shelley's 
Case,  the  intended  husband  takes,  not  an  equitable  life  es- 
tate, but  an  equitable  fee  tail.6  When,  however,  there  is  a 
mere  covenant  in  marriage  articles  to  settle  an  estate  in 
trust  for  the  intended  husband  for  life,  with  remainder  in 
trust  for  the  heirs  of  his  body,  a  court  of  equity,  regarding 
that  as  an  executory  trust,  will  not  construe  it  strictly,  but 
will  order  the  settlement  to  be  prepared,  giving  the  hus- 

•  Pom.  Eq.  Jur.  §  1001. 

»  Egerton  v.  Brownlow,  4  II.  L.  Cas.  3,  10. 

*  Sack vllle- West  v.  Holmesdale.  L.  R.  4  H.  L.  545,  553,  per  Lord 
Batberley. 

»  Wright  v.  Pearson,  1  Eden,  119;  Austen  v.  Taylor,  Id.  361;  Cush- 
Ing  v.  Blake,  30  N.  J.  Eq.  689;  Tillinglmst  v.  Coggeshall,  7  R.  L  385r 
Carroll  v.  Iteiilch.  7  Smedes  &  M.  (Miss.)  79& 


§§  17G-177)  ACTIVE  TRUST.  381 

band  a  life  estate  only,  with  remainder  to  his  first  and  other 
sons  in  tail  male,  on  the  ground  that  that  was  the  obvious 
intention  of  the  parties.* 

The  same  principles  of  construction  apply  to  wills,  except 
that  in  executory  trusts  created  by  marriage  articles  equity 
will  presume  an  intention  to  provide  for  the  offspring  of  the 
marriage,  while  in  executory  trusts  created  by  wills  there 
must  be  some  affirmation  showing  that  the  rule  in  Shelley's 
Case  was  not  intended  to  apply.7  The  abrogation  of  the 
rule  in  Shelley's  Case  in  many  of  the  states  renders  the  ap- 
plication of  these  principles  rather  infrequent  with  us. 


ACTIVE  AND  PASSIVE  TBUSTS. 

175.  In  respect  to  the  nature    of  the  duties  of  the 

trustee  and  of  the  interest  of  the  cetui  que 
trust,  an  express  private  trust  may  be 
either 

(1)  An  active,  or  special,  trust,  OP 

(2)  A  passive,  or  simple,  trust. 

ACTIVE  TRUST. 

176.  An  active  trust,   or  a  special  trust,    as  it  is 

sometimes  called,  is  one  in  which  a  trustee 
is  appointed  to  carry  out  some  scheme 
specified  by  the  creator  of  the  trust,  and  is 
charged  with  the  performance  of  active  and 
substantial  duties  in  connection  with  the 
control,  management,  and  disposition  of  the 
trust  property. 

177.  In  an  active   trust  the    cestui  que   trust   only 

possesses  the  right  to  enforce  in  equity  the 

•  Trevor  v.  Trevor,  1  P.  Wms.  622;  Streatfield  v.  Streatfleld,  Gas. 
t.  Talb.  176. 

i  Gtenorchy  v.  Bosville,  Gas.  t  Talb.  5,  1  White  &  T.  Lead.  Gas. 
Eq.  (4th  Am.  Ed.)  1;  Sweetapple  v.  Bindon,  2  Vern.  536;  Papillon  v. 
Voice,  2  P.  Wms.  471;  Wood  v.  Burnham,  6  Paige  (N.  Y.)  514;  Tall- 
man  v.  Wood,  2G  Wend.  (N.  Y.)  9;  In  re  Angell,  13  B.  I.  630. 


382  EQUITABLE    PROPERTY TRUSTS.  (Ch.   14 

specific  execution  of  the  duties  declared  in 
the  trust,  to  the  extent  of  the  interest  of 
such  cestui  que  trust  in  the  trust  estate.1 

Active  or  special  trusts  may  be  created  for  any  purpose 
not  prohibited  by  law,2  and  may  extend  to  every  species  of 
property.  The  legal  title  of  the  trust  property  in  all  such 
trusts  remains  in  the  trustee,  and  the  cestui  que  trust  has 
only  a  beneficial  interest  therein;  but  he  always  has  the 
right,  however,  to  compel  a  performance  of  the  trust  ac- 
cording to  its  terms  and  intent.  If  a  trust  is  to  A.  to  collect 
rents  and  profits,  and  to  pay  therefrom  all  expenses  in  car- 
ing for  the  property,  and  the  residue  to  C.  during  his  life- 
time, the  trust  is  an  active  one.3  There  are  a  great  number 
of  special  purposes  for  which  active  trusts  may  be  created. 
Among  the  most  common  of  these  are  where  (i)  the  trust  is 
for  the  conveyance  of  the  property  to  designated  persons; 
(2)  where  the  trustee  is  directed  to  dispose  of  the  entire 
property,  and  use  the  proceeds  for  the  payment  of  debts, 
legacies,  and  the  like;  (3)  where  the  profits  and  income  of 
the  trust  property  are  to  be  accumulated  or  applied  for  some 
specific  purpose.  Another  form  of  this  trust  quite  frequent 
in  some  of  the  states  is  the  "deed  of  trust,"  which  takes  the 
place  of  a  real-estate  mortgage.  The  land,  which  is  des- 
ignated to  stand  as  security  for  the  debt,  is  conveyed  by  the 
debtor  to  a  trustee,  who  is  directed  to  sell  the  property  on 
default  of  payment  by  the  grantor,  and  out  of  the  proceeds 
to  pay  the  debt,  and  account  to  the  grantor  for  the  surplus. 
Such  deeds  do  not  differ  materially  from  mortgages  con- 
taining a  power  of  sale,  and  they  are  usually  considered  and 
treated  as  mortgages.4 

§§  17G,  177.     i  Lewin,  Trusts,  p.  689. 

a  In  many  of  the  states  the  purposes  for  which  active  trusts  may 
be  created  are  greatly  limited  by  statute.  But  trusts  not  within  the 
statute,  If  lawful  In  other  respects,  may  be  sustained  as  powers  In 
trust.  See  ante,  p.  378. 

«  Goodrich  v.  City  of  Milwaukee,  24  Wls.  422;  Watson's  Appeal, 
11.'.-,  Pa.  340,  17  Atl.  426;  Roll's  Appeal,  133  Pa.  351,  19  AtL  558; 
Benson  v.  Wright  88  Tenn.  501,  12  S.  W.  1035. 

*  Webb  v.  Hoselton,  4  Neb.  308,  19  Am.  Rep.  638;  Austin  v.  Manu- 
facturing Co.,  14  R.  I.  464;  Hoffman  v.  Mackall,  5  Ohio  St  124,  64 
Am.  Dec.  637;  Wisconsin  Cent.  R.  Co.  v.  Land  Co.,  71  Wis.  94,  36  N. 
W  837.  In  some  of  the  states,  however,  it  is  held  that  a  trust  deed 


§§  178-179)  PASSIVE  TRUST.  383 

It  has  been  held  that  the  discretion  reposed  in  a  trustee  is 
decisive  of  the  active  character  of  the  trust,6  and  the  fact  that 
the  beneficiary  has  the  power  to  remove  or  substitute  trus- 
tees has  no  bearing  on  this  question.' 


PASSIVE  TRUST. 

178.  An  express  passive,   or  simple,  trust,  as  it  is 

sometimes  called,  is  one  in  which  the  prop- 
erty is  vested  in  a  person  in  trust  for  an- 
other, and  the  trustee  has  no  active  duties 
to  perform  in  respect  to  the  trust  property, 
nor  any  right  of  possession,  nor  power  ol 
management,  nor  control  of  such  property, 
except  by  the  direction  of  the  cestui  que 
trust. 

179.  In  such  a  trust  the  cestui  que  trust  is  consid- 

ered in  equity  as  the  absolute  owner,  and 
is,  therefore,  entitled  to  put  an  end  to  the 
trust  by  calling  on  the  trustee  to  convey  to 
him  the  legal  estate.1 

A  simple  case  of  a  passive  trust  is  where  A.  devises  or 
conveys  property  to  B.  in  trust  for  C.,  without  any  further 
direction.  In  such  a  trust  the  only  duty  which  B.  has  to 
perform  is  to  convey  the  legal  estate  to  C.  The  beneficial 
ownership  is,  to  all  intents  and  purposes,  in  C.,  and  he  is  en- 
titled to  the  possession,  the  rents  and  profits,  and  the  man- 
differs  from  a  mortgage  in  that  it  conveys  the  legal  title,  while  the 
mortgage  does  not.  Partridge  v.  Shepard,  71  Gal.  470,  12  Pac.  480; 
Soutter  v.  Miller,  15  Fla.  G25. 

•  Kirkland  v.  Cox,  94  111.  400. 

e  Hart  v.  Seymour,  147  111.  598,  35  N.  B.  246. 

§§  178, 179.  i  Perry,  Trusts,  §  18,  where  a  simple  trust  is  defined 
as  a  simple  conveyance  of  property  to  one  upon  trust  for  another, 
without  further  specifications  or  directions.  In  such  case  the  law 
regulates  the  trust,  and  the  cestui  que  trust  has  the  right  of  pos- 
session and  of  disposing  of  the  property,  and  he  may  call  upon  the 
trustee  to  execute  such  conveyances  of  the  legal  estates  as  are  nec- 
essary. 


EQUITABLE   PROPERTY TRUSTS.  (Ch.   14 

agement  and  control  of  the  trust  property  to  the  full  extent 
of  his  estate.2  And  where  property  is  conveyed  to  B.  and 
his  heirs  in  trust  to  collect  the  rents  and  profits,  and  pay 
them  to  C.,  during  his  lifetime,  and  on  his  death  in  trust  for 
his  eldest  son  absolutely,  the  trust  is  active  or  special  dur- 
ing C.'s  lifetime,  but  on  his  death  it  becomes  a  passive  or 
simple  trust,  for  C.'s  son  is  then  in  equity  regarded  as  the 
absolute  owner. 

In  many  of  the  states  passive  or  simple  trusts  in  real  es- 
tate have  been  abolished  by  statutes,  and  the  entire  estate, 
legal  and  equitable,  vests  in  the  cestui  que  trust.8  But  pas- 
sive trusts  in  personal  property  are  not  uncommon ;  as, 
where  money  is  deposited  in  a  bank  by  A.  in  trust  for  B.4 


ASSIGNMENT  FOB  BENEFIT  OF  CBEDITOBS. 

180.  A  voluntary  general  assignment  by  an  embar- 
rassed debtor  for  the  benefit  of  his  creditors 
is  valid,  unless  prohibited  by  statute.  Such 
en  assignment  creates  a  true  trust  relation, 
and  the  creditors  are  true  beneficiaries. 
The  assent  of  the  creditors  is  presumed, 
since  such  trust  is  for  their  benefit;  and 
the  trust  is  therefore  irrevocable  by  the  as- 
signor. 

The  English  doctrine  in  respect  to  voluntary  assignments 
for  the  benefit  of  creditors  differs  materially  from  that  adopt- 
ed by  the  courts  in  this  country.  In  England  the  rule  seems 
to  be  that,  where  a  person  who  is  indebted  makes  provision 

*  Pom.  Eq.  Jur.  §  988;  Brown  v.  How,  Barnard,  Ch.  354;  Attor- 
ney General  v.  Gore,  Id.  150. 

s  Such  statutes  exist  in  New  York,  Michigan,  Wisconsin,  Minneso- 
ta. California,  and  the  Dakotas,  see  ante,  p.  878.  As  to  the  con- 
struction of  such  statutes,  see  Farmers'  Nat  Bank  v.  Moran,  30 
Minn.  165,  14  N.  W.  805;  Sullivan  v.  Bruhling,  66  Wls.  472,  29  N. 
W.  211;  Syracuse  Sav.  Bank  v.  Holden,  105  N.  Y.  415,  11  N.  E.  950; 
Townshend  v.  Frommer,  125  N.  Y.  446,  26  N.  E.  805. 

«  Martin  v.  Funk,  75  N.  Y.  134,  31  Am.  Rep.  446;  Boone  v.  Bank, 
84  N.  Y.  83,  38  Am.  Rep.  498;  Leighton  v.  Bowen,  75  Me.  504.  And 
see  cases  cited  ante,  p.  374,  uote  1.".. 


§    181)  PUBLIC   OB   CHARITABLE   TRUSTS.  385 

for  the  payment  of  his  debts  by  vesting  his  property  in  trus- 
tees upon  trust  to  pay  them,  but  does  so  behind  the  backs 
of  the  creditors,  and  without  communicating  with  them,  the 
trustees  do  not  become  trustees  for  the  creditors.  The  ar- 
rangement is  supposed  to  be  made  by  the  debtor  for  his  own 
convenience  only.  It  is  deemed  to  be  the  same  as  where  a 
debtor  puts  a  sum  of  money  into  the  hands  of  an  agent  with 
directions  to  apply  it  in  paying  certain  specified  debts.  In 
such  a  case  there  is  no  privity  between  the  agent  and  the 
creditor,  and  the  trust  is  revocable  by  the  settlor  at  any  time 
before  the  money  is  paid  to  the  creditors.1 

In  the  American  states,  assignments  for  the  benefit  of 
creditors  are  generally  regulated  by  statute.  But,  inde- 
pendent of  statute,  it  is  well  established  in  the  courts  of  this 
country  that  a  trust  created  for  the  payment  of  debts,  if  for 
the  benefit  of  creditors,  is  a  valid  trust,  and  vests  the  title 
of  the  trust  property  in  the  trustee.  The  assent  of  the  cred- 
itors will  be  presumed,  and  the  trust,  being  duly  executed, 
is  irrevocable.* 


PUBLIC  OR  CHARITABLE  TRUSTS— OBJECTS. 

181.  A  charitable  trust  has  been  denned  to  be  "a 
gift  to  be  applied,  consistently  with  exist- 
ing laws,  for  the  benefit  of  an  indefinite 
number  of  persons,  either  by  bringing  their 
hearts  under  the  influence  of  education  or 
religion,  by  relieving  their  bodies  from 
disease,  suffering,  or  constraint,  by  assist- 
ing them  to  establish  themselves  for  life, 
or  by  erecting  or  maintaining  public  build- 

§  180.  i  Underh.  Trusts  (Am.  Ed.)  p.  37;  Walwyn  v.  Coutts,  3 
Sim.  14;  Garrard  v.  Lord  Lauderdale,  Id.  1;  Acton  v.  Woodgate,  2 
Mylne  &  K.  495;  Johns  v.  James,  8  Ch.  Div.  744;  Henderson  v. 
Rothschild,  33  Ch.  Div.  459. 

2  Ingram  v.  Kirkpatrick,  41  N.  C.  463,  51  Am.  Dec.  428;  Nicoll  v. 
Mumford,  4  Johns.  Ch.  (N.  Y.)  522;  Valentine  v.  Decker,  43  Mo.  583; 
Mills  v.  Parkhurst,  126  N.  Y.  89,  26  N.  E.  1041,  13  L.  R.  A.  472; 
Moore  v.  Hoinnant,  89  N.  C.  455;  Zell  Guano  Co.  v.  Heatherly,  38 
W.  Va.  409,  18  S.  E.  611. 

EATON.EQ.— 25 


386  EQUITABLE    PROPERTY TRUSTS.  (Ch.   14 

ings  or  works,  or  otherwise  lessening  the 
burden  of  government."  l 

It  has  been  supposed  that  the  jurisdiction  of  courts  of 
equity  in  respect  to  charitable  trusts  had  its  origin  in  the  so- 
called  "statute  of  charitable  uses."  2  This  was  at  one  time 
a  prevailing  opinion  in  England,8  and  was  adopted  more  or 
less  generally  in  the  courts  of  this  country.4  But  upon  re- 
search it  was  discovered  that  courts  of  chancery  had  enter- 
tained jurisdiction  over  charitable  trusts  prior  to  the  enact- 
ment of  that  statute,  and  it  is  now  well  settled  that  such  ju- 
risdiction existed  independently  of  and  prior  to  that  enact- 
ment.5 Notwithstanding  the  fact  that  the  system  of  char- 
itable trusts  does  not  owe  its  origin  to  such  statute,  it  is  cer- 
tain that  there  is  contained  therein  a  declaratory  statement 
defining  and  enumerating  charitable  uses,  which,  while  not 
conclusive  in  those  states  where  the  statute  is  not  in  force, 
has  always  been  a  guide  to  the  courts  in  considering  the  sub- 
ject of  charitable  trusts.  Such  charitable  uses  are  set  forth 
in  the  preamble  of  the  act  as  follows :  "The  relief  of  aged, 
impotent  and  poor  people;  the  maintenance  of  sick  and  maim- 
ed soldiers  and  manners ;  schools  of  learning  and  scholars  in 
universities ;  the  repair  of  bridges,  ports,  havens,  causeways, 
churches,  sea-banks  and  highways ;  the  education  and  pre- 
ferment of  orphans ;  the  relief,  stock  or  maintenance  of 
houses  of  correction ;  the  marriage  of  poor  maids ;  the  sup- 
portation,  aid,  and  help  of  young  tradesmen,  handicrafts- 
men, and  persons  decayed ;  the  relief  or  redemption  of  pris- 
oners and  captives ;  the  aid  or  care  of  any  poor  inhabitants 
concerning  payment  of  fifteens,  setting  out  soldiers,  or  other 
taxes."  This  enumeration  may  not  be  deemed  conclusive 
of  all  other  charitable  uses  not  specifically  mentioned  there- 


I  181.     i  Jackson  v.  Phillips,  14  Allen  (Mass.)  556,  per  Gray,  J. 

»  43  Eliz.  c.  4. 

•  1  Spence,  Eq.  Jur.  589. 

«  Trustees  of  Philadelphia  Baptist  Ass'n  v.  Hart's  Ex're,  4  Wheat 
1,  4  L.  Ed.  499;  Gallego's  Ex'rs  v.  Attorney  General,  3  Leigh  (Va.) 
450,  24  Am.  Dec.  650. 

«  Vidal  v.  Girard's  Ex'rs,  2  How.  127,  155,  194,  190,  11  L.  Ed.  205; 
Protestant  Episcopal  Soc.  v.  Churchman,  80  Va.  718;  Trustees,  etc., 
of  Presbyterian  Church  v.  Guthrie,  SG  Va.  125,  10  S.  E.  318,  6  L.  R. 
321. 


§    181)  PUBLIC   OR   CHARITABLE   TRUSTS.  387 

in,  but  it  has  always  been  considered  illustrative  of  the  pur- 
poses for  which  charitable  trusts  may  be  created.  Many  ob- 
jects have  been  declared  to  be  charitable  which  are  not  men- 
tioned in  the  statute,  because  they  are  analogous  to  those 
therein  mentioned,  and  are  in  conformity  with  the  spirit  of 
the  preamble. 

Gifts  and  conveyances  in  trust  for  religious  purposes, 
though  not  expressly  included  in  the  statutory  enumeration, 
have  always  been  upheld  and  enforced.  These  include  trusts 
created  for  the  propagation  of  religion,  the  erection  and 
maintenance  of  church  edifices,  the  support  of  clergymen, 
and  the  spread  of  religious  influences  by  missionary,  Bible, 
and  other  religious  societies.8  Trusts  for  religious  purposes 
are  valid,  although  not  mentioned  in  the  statute,  since  they 
are  within  its  spirit  and  intent;  as  trusts  in  aid  or  support 
of  the  poor,  widows,  and  orphans.7  The  benevolent  purpose 
must,  however,  be  a  public  one,  and  a  beneficial  society  the 
benefits  of  which  are  confined  to  its  own  members  is  not  a 
public  charity.8  Gifts  for  educational  purposes  are  clearly 
within  the  spirit  of  the  statute ;  as  for  the  advancement  of 
learning,9  the  maintenance  and  support  of  library  and  liter- 
ary institutions,10  and  for  the  founding  and  support  of 

«  Jones  v.  Habersham,  107  U.  S.  174,  182,  2  Sup.  Ct.  336,  27  L.  Ed. 
401;  De  Camp  v.  Dobbins,  29  N.  J.  Eq.  36;  Old  South  Society  v. 
Crocker,  119  Mass.  1,  20  Am.  Rep.  299;  Morville  v.  Fowle,  144  Mass. 
109,  10  N.  E.  766;  Goodell  v.  Association,  29  N.  J.  Eq.  32.  But  see 
Starkweather  v.  Society,  72  111.  50,  22  Am.  Rep.  133,  which  holds 
that  the  American  Bible  Society  is  not  a  charity.  Domestic  mis- 
sions, see  Morville  v.  Fowle,  144  Mass.  109,  10  N.  E.  766;  Andrews 
v.  Andrews,  110  111.  223.  And  see,  generally,  the  recent  cases  of  Al- 
den  v.  Parish,  158  111.  631,  42  N.  E.  392,  30  L.  R.  A.  232;  Mack's 
Appeal,  71  Conn.  122,  41  Atl.  242;  Trustees,  etc.,  of  Christ  Church  v. 
Parish,  67  Cbnu.  554,  35  Atl.  552;  Teele  v.  Bishop  of  Derry,  168 
Mass.  341,  47  N.  E.  422,  38  L.  R.  A.  629. 

7  Sohier  v.  Burr,  127  Mass.  221;  Quid  v.  Hospital,  95  U.  S.  303, 
24  L.  Ed.  450;  Bullard  v.  Chandler,  149  Mass.  532,  21  N.  E.  951,  5 
L.  R.  A.  104;  Hunt  v.  Fowler,  121  111.  269,  12  N.  E.  331,  17  N.  E.  491. 

«  Swift's  Ex'rs  v.  Society,  73  Pa.  362. 

»  Whicker  v.  Hume,  7  H.  L.  Cas.  124,  1  De  Gex,  M.  &  G.  506;  At- 
torney General  v.  Parker,  126  Mass.  216;  Taylor's  Ex'rs  v.  Trustees, 
34  N.  J.  Eq.  401;  Jones  v.  Habersham,  107  U.  S.  174,  2  Sup.  Ct  336, 
27  I..  Ed.  401. 

10  Drury  v.  Inhabitants  of  Natick,  10  Allen  (Mass.)  169;  Dascomb 
v.  Marston,  80  Me.  223,  13  AtL  888;  Brown  v.  Paucoast,  34  N.  J.  Eq. 
824. 


388  EQUITABLE    PROPERTY TRUSTS.  (Ch.    14 

schools  and  colleges.11  But  these  purposes  must  be  public, 
or  for  the  benefit  of  some  portion  of  the  public.  A  gift  to 
trustees  "for  the  establishment  of  a  school  at  M.  for  the  edu- 
cation of  children"  was  held  not  a  valid  charity,  since  the 
school  might  be  private.12  The  statute  expressly  mentions 
certain  public  purposes  for  which  charitable  trusts  might  be 
created,  and  there  are  many  other  public  purposes  which 
may  be  valid  charities  because  within  tfte  plain  intent  of  the 
statute.  Among  these  are  gifts  for  the  erection  and  main- 
taining of  public  buildings,1*  the  support  of  public  parks,14 
and  the  erection  of  public  monuments.  There  are  other 
charitable  purposes  either  within  the  letter  or  the  spirit  and 
intent  of  the  statute  which  may  be  made  the  objects  of  char- 
itable trusts.  These  purposes  are  much  too  numerous  to 
specify  in  detail.  Reference  may  be  had  to  any  leading  text- 
book on  the  subject  of  trusts  and  trustees,  where  many  more 
individual  cases  are  doubtless  enumera'ted  and  described.18 
In  concluding  this  portion  of  the  subject  it  is  well  to  observe 
that  courts  of  equity  look  with  favor  upon  gifts  for  char- 
ities, and  will  endeavor  to  carry  them  into  effect,  if  it  can 
be  done  consistently  with  the  rules  of  law.1'  If  the  words  of 
a  gift  are  ambiguous  or  contradictory,  they  are  so  construed 
as  to  support  the  charity,  if  possible.  It  is  an  established 
maxim  of  interpretation  in  courts  of  equity  that  the  court  is 
bound  to  carry  the  gift  into  effect  if  it  can  see  a  general 
charitable  intention  consistent  with  the  rules  of  law,  even  if 
the  particular  manner  indicated  by  the  donor  is  illegal  or 
impracticable.17 

1 i  Second  Religious  Soc.  of  Boxf ord  v.  Harriman,  125  Mass.  321 ; 
Quincy  v.  Attorney  General,  160  Mass.  431,  35  :s7.  E.  1066;  Piper  v. 
Moulton,  72  Me.  155;  People  v.  Cogswell,  113  Cal.  129,  45  Pac.  270, 
35  L.  R.  A.  269;  Crerar  v.  Williams,  145  111.  625,  34  N.  E.  467,  21  L. 
R.  A.  454. 

«  Attorney  General  v.  Soule,  28  Mich.  153;  Came  v.  Long,  2  De 
Gex,  F.  &  J.  75. 

«  Coggeshall  v.  Pelton,  7  Johns.  Ch.  (N.  Y.)  292,  11  Am.  Dec.  471. 

n  Cresson's  Appeal,  30  Pa,  437;  Townley  v.  Bedwell,  6  Ves.  194: 
Feversham  v.  Ryder,  27  Eng.  &  E.  Eq.  369. 

is  Perry,  Trusts,  c.  23,  §-§  698,  706. 

»«  Duggan  v.  Slocuin  (C.  C.)  83  Fed.  244;  Ingraliam  v.  Ingraham, 
169  111.  432,  48  N.  E.  561,  49  N.  E.  320;  In  re  Willey's  Estate  (Cal.) 
66  Pac.  550. 

»7  Perry,  Trusts,  {  709. 


§    182)  PUBLIC   OB   CHARITABLE   TKUBT8.  3SD 


SAME— CHARACTERISTICS. 

182.  The  distinguishing  characteristics  of  a  chari- 
table or  public  trust  as  compared  with  a 
private  trust  are  : 

(a)  The  uncertainty  which   is   permitted   in    de- 

scribing its  objects  and  purposes. 

(b)  The  uncertainty  of  its  beneficiaries. 

(c)  The  perpetuity  of  its  existence. 

In  the  case  of  an  express  private  trust  the  objects  and  pur- 
poses thereof  must  be  definitely  and  clearly  declared.  But 
a  charitable  trust  will  be  sustained  and  enforced  if  the  donor 
sufficiently  shows  his  intention  to  create  a  charity,  and  indi- 
cates its  general  nature  and  purposes,  although  much  has 
been  left  to  the  discretion  of  the  trustees,  and  the  declara- 
tion and  description  of  the  objects  and  purposes  of  the  trust 
are  indefinite  and  uncertain.1  But  there  is  a  limit  to  the 
uncertainty  and  indefiniteness  that  will  be  observed  even  in 
those  jurisdictions  where  the  statute  of  charitable  uses  is  in 
full  force.2  There  must  be  a  clear  intention  to  create  the 
charity,  and  a  sufficient  declaration  of  the  purposes  thereof 
to  enable  the  court  to  enforce  its  provisions.  As  we  have 
seen,  the  beneficiary  of  an  express  private  trust  must  be  an 
ascertained  person  or  persons ;  but,  from  the  very  nature  of 
a  charitable  trust,  the  beneficiaries  are  an  uncertain  body  or 
class.  The  courts  of  this  country,  except  in  those  few  states 
where  the  system  of  charitable  uses  s'till  prevails,  have  not 
adopted  the  doctrine  of  uncertainty  of  purposes,  objects,  and 

§  182.  i  The  following  cases  are  in  support  of  trusts  uncertain  in 
their  terms  and  objects:  Magistrates  of  Dundee  v.  Morris,  3  Macq. 
134,  157  (a  bequest  "for  such  charities  and  other  public  purposes  as 
may  lawfully  be  in  the  parish  of  T.");  Dolan  v.  Macdermot,  L.  R.  5 
Eq.  60,  3  Ch.  App.  676  (for  charitable  purposes  generally);  Chamber- 
layne  v.  Brockett,  L.  R.  8  Ch.  App.  206  (charitable  purposes  in  dis- 
cretion of  trustees);  Lewis  v.  Allenby,  L.  R.  10  Eq.  6G8;  Wilkinson 
v.  Barber,  L.  R.  14  Eq.  96;  Pocock  v.  Attorney  General,  3  Ch.  Div. 
342. 

2  Vezey  v.  Jamson,  1  Sim.  &  S.  69,  Morice  r.  Bishop  of  Durham, 
9  Ves.  399,  and  Williams  v.  Kershaw,  5  Clack  &  F.  Ill,  are  examples 
of  bequests  in  trust  declared  invalid  because  there  is  too  great  an 
uncertainty  as  to  the  purposes  of  the  trust. 


390  EQUITABLK    PROPERTY TRUSTS.  (Ch.    14 

beneficiaries  to  its  full  extent.  For  the  most  part,  a  greater 
definiteness  in  declaring  the  objects  of  the  trust  and  in  de- 
scribing its  beneficiaries  has  been  required  in  order  to  sus- 
tain its  validity.* 

Uncertainty  of  Trustees* 

It  is  a  part  of  the  English  doctrine  of  charitable  trusts 
that  no  legal  or  valid  trust  shall  be  permitted  to  fail  for  want 
of  a  trustee;  so  that,  if  a  donor  makes  a  gift  for  a  partic- 
ular charitable  purpose,  and  appoints  no  trustee,  or  the  trus- 
tee appointed  by  him  is  incapable  of  acting,  dies  before  the 
testator,  declines  to  act,  or  is  not  in  esse,  but  is  to  come  in- 
to existence  by  an  act  of  incorporation,  courts  of  equity,  in 
the  exercise  of  their  ordinary  jurisdiction,  can  establish  the 
charity.4  There  is  great  diversity  of  opinion  on  this  subject 
in  the  courts  of  the  several  states  of  this  country.  It  is  im- 
practicable to  treat  exhaustively  of  this  important  question 
in  a  work  of  this  character.  There  is  no  doubt  that  many 
trusts  with  a  total  failure  in  the  appointment  of  a  trustee 
have  been  sustained  and  enforced.  There  is  no  prevailing 
American  rule,  and  an  almost  hopeless  confusion  even  in  the 
decisions  of  the  courts  of  the  same  state.  The  doctrine  has 
been  absolutely  rejected,  however,  in  many  states,  which  ad- 
mit the  existence  and  validity  of  charitable  trusts  only  in 
cases  where  the  property  is  given  to  a  certain  and  competent 
trustee.5 

Perpetuities. 

One  of  the  characteristics  of  the  charitable  trust  is  the  fact 
that  it  is  not  subject  to  the  ordinary  .rules  in  respect  to  per- 

•  Bequests  to  executors  for  "such  persons,  societies,  or  institu- 
tions as  they  may  consider  most  deserving"  were  held  invalid  be- 
cause too  Indefinite,  Nichols  v.  Allen,  130  Mass.  211,  39  Aui.  Rep. 
445;    "to  the  Roman  Catholic  orphans,"  Heiss  v.  Murphey,  40  Wis. 
270;   to  trustees  "for  benefit  of  colored  persons,"  Needles  v.  Martin, 
33  Md.  609.     And  see  Kaln  v.  Glbboney,  101  U.  S.  302,  25  L.  Ed.  813; 
Bristol  v.  Bristol,  53  Conn.  242,  5  Atl.  687;    Mills  v.  Newberry,  112 
111.  123.  54  Am.  Rep.  213;   Gafney  v.  Kenison,  64  N.  H.  354,  10  Atl. 
706. 

«  Perry,  Trusts,  §  722;  Sears  v.  Chapman,  158  Mass.  400,  33  N.  E. 
604.  And  see  Mills  v.  Farmer,  1  Mer.  55,  96;  Moggridge  v.  Thack- 
well,  3  Brown.  Oh.  517;  Russell  v.  Allen,  107  U.  S.  167,  2  Sup.  Ct 
327,  27  L.  Ed.  397;  Brown  v.  Pancoast,  34  N.  J.  Eq.  324;  McOord  v. 
Ochiltree,  8  Blockf.  (Ind.)  15,  22. 

•  Pom.  Eq.  Jur.  1 1020. 


§    182)  PUBLIC   OB   CHARITABLE   TRUSTS.  391 

petuities.  A  perpetual  trust  cannot  be  created  for  an  indi- 
vidual and  his  heirs  in  succession  forever."  But  a  charitable 
trust  generally  contemplates  the  establishment  of  a  charity 
which  is  to  endure  forever.  "Indeed,  it  is  always  hoped, 
where  funds  are  given  in  trust,  the  income  to  be  applied  to 
some  church,  almshouse,  hospital,  or  school,  that  such  in- 
stitution will  exist  indefinitely,  and  that  the  donor's  bounty 
will  be  a  perennial  spring  for  generations."  T  This  rule  as 
to  perpetuities  does  not  prohibit  the  alienation  of  the  trust 
property,  for  the  court  can  decree  the  sale  of  any  part  there- 
of, if  the  exigencies  of  the  charity  seem  to  demand  it.8  In 
the  state  of  New  York  charitable  trusts  have,  until  very  re- 
cently, been  subjected  to  all  the  rules  and  the  statute  against 
perpetuities.9  The  courts  of  England  have  favored  so 

•  Thellusson  v.  Woodford,  4  Ves.  226;  Hooper  v.  Hooper,  9  Gush. 
(Mass.)  122;  Thorndike  v.  Loring,  15  Gray  (Mass.)  301;  Hawley  v. 
James,  5  Paige  (N.  Y.)  445. 

i  Perry,  Trusts,  §  737. 

s  Shotwell  v.  Mott,  2  Sandf.  Ch.  (N.  Y.)  55;  Stanley  v.  Colt,  5 
Wall.  119,  18  L.  Ed.  502;  Sohier  v.  Trinity  Church,  109  Mass.  1; 
Yard's  Appeal,  64  Pa.  95;  Gram  v.  Society,  36  N.  Y.  161. 

s  The  change  in  the  state  of  New  York  on  this  subject  is  very  well 
set  forth  in  the  following  extract  from  the  opinion  of  Gray,  J.,  In 
the  case  of  In  re  Griffin's  Will,  167  N.  Y.  71,  60  N.  E.  284:  "In  Wil- 
liams v.  Williams,  8  N.  Y.  525,  it  was  declared  that  the  law  of  Eng- 
land upon  the  subject  of  gifts  to  charitable  uses  as  it  was  adminis- 
tered by  the  court  of  chancery  became,  at  the  time  of  the  adoption 
of  our  constitution,  and  continued  to  be,  the  law  of  this  state.  Un- 
der that  legal  system  charitable  trusts  were  favored  by  the  court, 
and  effectuated  by  the  exercise  of  prerogative  powers.  But  with 
the  decision  in  Holmes  v.  Mead,  52  N.  Y.  332,  the  question  whether 
the  English  law  of  charitable  uses  had  become  the  law  of  this  state, 
as  held  in  the  Williams  Case,  was  settled.  The  Williams  Case,  as 
an  authority  to  the  effect  that  gifts  to  charity,  etc.,  were  not  within 
the  statute  against  perpetuities,  nor  were  avoided  by  indefiniteness 
of  the  beneficiaries,  after  several  attacks  upon  its  soundness,  was 
finally  repudiated,  and  it  was  held  that  the  provisions  of  the  Re- 
vised Statutes,  in  their  abolition  of  all  uses  and  trusts,  except  those 
specifically  named,  included  all  charities.  1  Rev.  St.  p.  727,  §  45. 
In  1893  the  legislature  passed  an  act  (chapter  701,  Sess.  Laws), 
which,  as  recently  construed  in  Allen  v.  Stevens,  161  N.  Y.  122,  55 
N.  E.  568,  restored  the  law  as  it  was  declared  to  be  in  this  state  in 
Williams  v.  Williams.  The  act  was  entitled  'An  act  to  regulate 
gifts  for  charitable  purposes,'  and  contained  two  sections.  The 
first  section  provided  that  'no  gift,  grant,  bequest  or  devise  to  reli- 
gious, educational,  charitable  or  benevolent  uses,  which  shall,  in 
other  respects,  be  valid  under  the  laws  of  this  state,  shall  be  deemed 


EQUITABLE    PROPERTY TRUSTS.  (Ch.   14 

strongly  the  sustaining  and  execution  of  trusts  for  charita- 
ble purposes  that  they  have  gone  beyond  the  rule  that  char- 
itable trusts  are  enforceable  where  the  trustee,  objects,  and 
beneficiaries  are  uncertain,  and  invented  and  fully  estab- 
lished the  so-called  "cy-pres  doctrine." 

invalid  by  reason  of  the  Indefinlteness  or  uncertainty  of  the  persons 
designated  as  the  beneficiaries  thereunder  in  the  instrument  creat- 
ing the  same.'  It  further  provides  that,  if  a  trustee  is  named  in  the 
instrument,  the  legal  title  to  the  property  given  shall  vest  in  such 
trustee;  but,  'if  no  person  be  named  as  trustee,  then  title  to  such 
lands  or  property  shall  vest  in  the  supreme  court.'  By  the  second 
section  it  is  provided  that  'the  supreme  court  shall  have  control  over 
the  gifts,  grants,  bequests  and  devises  in  all  cases  provided  for  by 
section  1,'  and  directs  the  attorney  general  to  'enforce  such  trusts 
by  proper  proceedings  in  the  court.'  In  Allen  v.  Stevens  the  ques- 
tion arose  over  the  residuary  clause  of  a  will,  wherein  the  testator 
gave  the  residue  of  his  estate  to  trustees  for  the  purpose  of  found- 
ing, erecting,  and  maintaining  'Graves  Homes  for  the  Aged,'  in  the 
city  of  Syracuse,  in  this  state.  It  was  contended  that  the  bequest 
was  bad  for  the  indeflniteness  of  the  beneficiaries,  and  because,  al- 
though intending  to  found  a  permanent  charity,  the  testator  did  not 
direct  the  formation  of  a  corporation  within  two  lives  in  being,  to 
take  over  the  trust  property.  The  case  decided  that  the  act  of  1893 
had  so  far  amended  the  law  relating  to  the  subject  of  charitable 
bequests  as  to  make  it  possible  to  effectuate  the  testator's  intention. 
The  opinion  reviews  the  decisions  since  the  case  of  Williams  v. 
Williams  and  prior  to  the  act  of  1893,  which  resulted  in  the  over- 
ruling of  that  case,  and  in  limiting  all  charitable  gifts  to  the  pro- 
visions of  our  statutes  of  uses  and  trusts.  The  frequent  miscar- 
riages of  the  intentions  of  donors  to  charity,  etc.,  were  commented 
upon,  and  the  conclusion  was  reached  that  the  legislature  intended 
in  the  enactment  of  the  law  of  1893  to  furnish  a  remedy  for  such 
cases  in  the  future.  It  was  held  that  thereby  the  legislature  in- 
tended to  restore  to  courts  of  equity  that  power  to  administer  char- 
itable trusts  which  they  were  declared  to  have  by  the  decision  in 
the  Williams  Case.  This  intention  was  found  to  be  manifest  in  the 
broadness  of  the  title  of  the  act  and  in  the  grant  of  power  over 
charitable  gifts  to  the  supreme  court,  and  the  construction  given 
effectuated  that  legislative  intention,  notwithstanding  the  letter  of 
the  statute.  The  broad  construction  given  to  the  provisions  of  the 
act  of  1893  in  Allen  v.  Stevens  relieves  a  gift  under  section  1  from 
the  defect  of  indeflniteness  of  the  beneficiary,  or  of  a  failure  to  name 
a  trustee,  and  exempts  it  from  the  operation  of  the  statute  of  per- 
petuities. We  must  accept  the  decision  of  that  case  as  dec-la  ring 
that,  to  give  practical  effect  to  the  legislation  of  1893,  it  must  be 
Interpreted  as  reviving  the  ancient  law  as  to  gifts  for  charitable  pur- 
poses, and  as  preventing  the  failure  of  a  trust  by  vesting  its  ad- 
ministration in  the  supreme  court." 


§    183)  PUBLIC   OE   CHARITABLE   TRUSTS.  393 


SAME— CY-PRES  DOCTRINE. 

183.  The  -word  "cy-pres"  means  "near  ;  next  to; 
as  near  as  may  be."1  Where  the  literal 
execution  of  the  trusts  of  a  charitable  gift 
is  inexpedient  or  impracticable,  a  court  of 
equity  -will  execute  thein,  as  nearly  as  it 
can,  according  to  the  original  plan.  The 
general  principle  upon  "which  the  court 
acts  is  that,  if  the  testator  has  manifested 
a  general  intention  to  give  to  a  charity,  the 
failure  of  the  particular  mode  in  -which  the 
charity  is  to  be  executed  shall  not  destroy 
the  charity ;  but,  if  the  substantial  inten- 
tion is  charity,  the  law  -will  substitute 
another  mode  of  devoting  the  property  to 
charitable  purposes,  though  the  formal  in- 
tention as  to  the  mode  cannot  be  accom- 
plished.2 

This  doctrine  has  never  been  applied  where  the  testator 
has  not  shown  a  general  intention  to  aid  a  charity.  As, 
where  a  testator  shows  an  intention  to  give  to  some  partic- 
ular institution,  and  such  intention  cannot  be  carried  out, 
and  there  is  no  intention  in  favor  of  charity  generally,  there 
cannot  be  a  valid  trust.8  One  of  the  most  striking  illustra- 
tions of  this  doctrine  appears  in  the  case  of  Attorney  Gen- 
eral v.  Ironmongers'  Co.*  There  property  had  been  be- 
queathed in  trust  to  apply  one-half  the  income  for  "the  re- 
demption of  British  slaves  in  Barbary  or  in  Turkey,"  and 
the  other  one-half  to  other  specified  charitable  purposes.  In 

§  183.     i  Stand.  Diet 

*  Lord  Eldon,  in  Moggridge  v.  Thackwell,  7  Ves.  56,  69. 

»  Attorney  General  v.  Bishop  of  Llandaff,  cited  in  2  Mylne  &  K. 
586;  Attorney  General  v.  Oglander,  3  Brown,  Ch.  166;  Attorney 
General  v.  Mayor,  etc.,  Id.  171;  Broadbent  v.  Barrow,  29  Ch.  Div. 
660;  In  re  Slevin  [1891]  1  Oh.  Div.  373;  Mormon  Church  v.  U.  S., 
136  U.  S.  1,  10  Sup.  Ct  792,  34  L.  Ed.  481. 

*  2  Beav.  313, 


394  EQUITABLK    PROPERTY TRUSTS.  (Ch.    14 

the  course  of  time,  it  happened  that  one-half  the  income  re- 
mained unused,  because  there  were  no  longer  any  British 
slaves  in  Barbary  or  in  Turkey  to  redeem,  and  the  court  of 
chancery  directed  this  undisposed-of  one-half  to  be  applied 
to  the  other  charitable  purposes  named  in  the  will,  thus  car- 
rying out  the  original  purposes  of  the  testator  as  nearly  as 
possible.  The  same  principle  was  applied  in  a  celebrated 
case  in  our  own  country.5  Property  had  been  bequeathed  to 
trustees  to  apply  the  income  to  the  maintenance  of  publica- 
tions having  for  their  object  the  creation  of  a  public  senti- 
ment that  would  put  an  end  to  negro  slavery  in  the  United 
States.  Afterwards  negro  slavery  was  abolished,  and  it  was 
held  that  the  income  should  be  applied  to  the  education  of 
the  freed  slaves,  as  being  more  nearly  in  consonance  with  the 
testator's  general  intention  than  to  treat  the  trust  as  at  an 
end,  and  turn  over  the  property  to  the  residuary  legatees 
named  in  the  will.  Very  many  of  the  American  states  have 
absolutely  rejected  the  cy-pres  doctrine  as  inconsistent  with 
their  institutions  and  modes  of  public  administration.  A 
few,  however,  in  which  the  English  statutes  relative  to  char- 
itable trusts  are  in  force,  have  accepted  such  doctrine  in  a 
more  or  less  modified  form. 


SAME— CHARITABLE     TRUSTS    IN     THE     UNITED 
STATES. 

184.  The  several  states  have  differed  as  to  the  en- 
forcement of  trusts  for  charitable  uses  and 
the  application  of  the  doctrines  in  respect 
thereto.  The  states  may  be  divided  into 
three  classes  . 

(a)  Those  in  -which  charitable  trusts  have  been 

abrogated  or  never  adopted. 

(b)  Those  in  which  the  system  prevails  in  a  limi- 

ted and  restricted  form. 

(o)  Those  in  -which  the  system  has  been  adopted 
in  its  full  extent. 

•  Jackson  v.  Phillips,  14  Allen  (Mass.)  539. 


§    184)  PUBLIC   OR   CHARITABLE    TRUSTS.  395 

Of  those  states  in  the  first  class,  New  York  may  be  taken 
as  a  leading  example.  Until  the  recent  very  radical  change 
in  its  policy  referred  to  in  a  preceding  note,*  it  seemed  to 
have  been  settled  that  the  English  system  of  indefinite  char- 
itable uses  had  no  existence  in  that  state,  and  no  place  in  its 
system  of  jurisprudence.1  Wisconsin  2  and  Michigan  &  have 
followed  the  rule  prevailing  in  New  York,  and  have  rejected 
the  doctrine  of  charitable  trusts.  And  the  same  may  be  said 
as  to  Minnesota,4  Maryland,8  North  Carolina,6  Virginia,7 
and  West  Virginia.8  In  all  these  states  a  valid  charitable 
trust  must  possess  all  the  attributes  of  a  valid  private  trust ; 
that  is,  there  must  be  a  trustee  competent  to  take  and  hold 
the  property,  definite  beneficiaries,  a  certain  object,  and  no 
perpetuity  created.  A  much  larger  number  of  states  have 
adopted  and  applied  the  doctrine  of  charitable  trusts  in  a  re- 
stricted and  modified  form.9  The  decisions  of  these  states 

§  184.     *  See  note  on  p.  391,  ante. 

1  Bascom  v.  Albertson,  34  N.  Y.  584;    Levy  v.  Levy,  33  N.  Y. 
97;    Cottman  v.  Grace,   112  N.   Y.  299,   19  N.   E.   839,   3   L.   R.   A. 
145;   People  v.  Powers,  147  N.  Y.  104,  41  N.  E.  432,  35  L.  R.  A.  502. 
At  the  present  time  the  doctrine  seems  to  have  been  unrestrictedly 
adopted.     See  In  re  Griffin's  Will,  167  N.  Y.  71,  60  N.  E.  284,  quoted 
from  in  note  on  391. 

2  Webster  v.  Morris,  66  Wis.  366,  28  N.  W.  353,  57  Am.  Rep.  278; 
In  re  Hoffen's  Estate,  70  Wis.  522,  36  N.  W.  407. 

«  Methodist  Episcopal  Church  of  Newark  v.  Clark,  41  Mich.  730, 
3  N.  W.  207. 

*  Little  v.  Willford,  31  Minn.  173,  17  N.  W.  282;  Atwater  v.  Rus- 
sell, 49  Minn.  22,  51  N.  W.  624. 

6  Rizer  v.  Perry,  58  Md.  112;  Barnum  v.  Mayor,  etc.,  62  Md.  275, 
50  Am.  Rep.  219;  Eutaw  Place  Baptist  Church  v.  Shively,  67  Md. 
493,  10  Atl.  244,  1  Am.  St.  Rep.  412. 

«  Miller  v.  Atkinson,  63  N.  C.  537;   Holland  v.  Peck,  37  N.  C.  255. 

i  Commonwealth  v.  Levy,  23  Grat.  (Va.)  21;  Gallego's  Ex'rs  v. 
Attorney  General,  3  Leigh  (Va.)  450.  The  rule  In  Virginia  has  been 
modified  by  the  recent  decision  in  Protestant  Episcopal  Education 
Soc.  v.  Churchman's  Representatives,  80  Va.  718. 

«  Wilson  v.  Perry,  29  W.  Va.  169,  1  S.  E.  302. 

»  Among  these  states  are  Alabama  (see  Johnson  v.  Holifield,  79 
Ala.  423,  58  Am.  Rep.  596),  Arkansas,  California  (see  In  re  Hinck- 
ley's  Estate,  58  Cal.  457),  Connecticut  (a  statute  similar  to  the  stat- 
ute of  charitable  uses  has  been  enacted;  and  see  Camp  v.  Crocker, 
f>4  Conn.  21,  5  Atl.  604),  Delaware,  Georgia  (see  Beckwith  v.  Rector, 
etc.,  69  Ga,  564),  Illinois  (see  Hunt  v.  Fowler,  121  111.  269,  12  N.  E. 
331;  Heuser  v.  Harris,  42  111.  425),  Indiana  (see  Cruse  v.  Axtel,  50 
Ind.  49),  Iowa,  Louisiana,  Maine  (see  Dascomb  v.  Marston,  80  Me. 


396  EQUITABLE    PROPERTY TRUSTS.  (Ch.  14 

have  only  a  general  resemblance.  There  is  more  or  less 
divergence  in  the  particular  rules  which  prevail  therein.  In 
the  most  of  them  the  statute  of  charitable  uses  is  either  in 
force,  a  similar  statute  has  been  enacted,  or  the  doctrines 
developed  by  effect  of  that  statute  have  been  adopted  in  more 
or  less  modified  forms.  In  a  few  of  them  the  doctrine  of 
cy-pres  is  accepted,  but  for  the  most  part  it  is  rejected.10 
There  are  a  few  states  which  have  adopted  the  general  sys- 
tem of  charitable  trusts,  and  the  doctrine  of  cy-pres  has  been 
fully  and  freely  accepted  and  enforced.  These  states  are 
Massachusetts,11  Kentucky,18  and  Rhode  Island,  to  which, 
perhaps,  must  now  be  added  New  York.1' 

223,  13  Atl.  888),  Missouri,  New  Hampshire,  New  Jersey,  Ohio  (see 
Mannlx  v.  Purcell,  46  Ohio  St.  102,  19  N.  E.  572),  Pennsylvania  (see 
Humane  Fire  Co.'s  Appeal,  88  Pa.  389;  Jones  v.  Renshaw,  130  Pa, 
827,  18  Atl.  651),  Rhode  Island,  South  Carolina,  Tennessee,  Texas, 
Vermont. 

10  in  Missouri  (Visitation  Academy  v.  Clemens,  50  Mo.  167)  and 
Illinois  (Hunt  v.  Fowler,  121  111.  269,  12  N.  E.  331)  the  doctrine  has 
been  approved. 

11  Kent  v.  Dunham,  142  Mass.  216,  7  N.  E.  730;   MInot  v.  Baker, 
147  Mass.  348.  17  N.  E.  839;   Stratton  v.  Physio-Medical  College,  149 
Mass.  505,  21  N.  E.  874;   Weeks  v.  Hibson,  150  Mass.  377,  23  N.  E. 
215,  6  L.  R.  A.  147. 

i»  Peynado's  Devisees  v.  Peynado's  Ex'r,  82  Ky.  6;  Kinney  r.  Kin- 
Bey's  Ex'r,  86  Ky.  610,  6  S.  W.  593. 

i»  Pell  r.  Mercer,  14  R.  I.  412;  Peckham  v.  Newton,  15  R,  I.  321, 
4  Atl.  758;  la  re  Griffin's  Will,  167  N.  Y.  71,  60  N.  E.  284. 


§    185)  IMPLIED   TRUSTS.  397 

CHAPTER  XV. 

IMPLIED  TRUSTS— RESULTING  AND  CONSTRUCTIVE. 

185.  Implied  Trusts— Definition. 

186.  Resulting  Trusts. 

187.  Classification. 

188.  Where  Owner  of  Legal  and  Equitable  Estate  Convey* 

Legal  Title  Only. 

189.  Arising  from  Failure  of  Express  Trusts. 

190.  Conveyance  without  Consideration. 

191.  Where  Purchase  is  in  Name  of  Another. 

192.  Purchase  in  Name  of  Stranger. 

193.  Purchase  in  Name  of  Wife,  Child,  or  Relative. 

194.  Constructive  Trusts. 

195.  Purchases  with  Trust  Funds. 

196.  Conveyance  of  Trust  Property  to  Volunteer  or  Purchaser 

with  Notice. 

197.  Bequests  and  Devises  Obtained  through  Fraud. 

IMPLIED   TRUSTS— DEFINITION. 

185.  Implied  trusts  are  those  -which  arise  by  oper- 
ation of  law  from  the  deeds,  wills,  con- 
tracts, acts,  or  conduct  of  parties,  either  -with 
or  without  their  intention,  but  without  any 
express  words  of  creation.1  Implied  trusts 
are  either  resulting  or  constructive. 

There  is  a  marked  distinction  between  express  trusts, 
which  have  been  discussed  in  the  preceding  chapter,  and 
those  which  arise  by  operation  of  law,  or  implied  trusts.  In 
the  former  class  there  is  always  a  more  or  less  explicit  dec- 
laration of  the  object  of  the  trust,  a  clear  intention  as  to  the 
trustee  and  cestui  que  trust,  and  an  element  of  permanency. 
In  the  case  of  an  implied  trust  the  intention  of  the  parties 
is  not  always  material.  The  trust  relation  may  exist  be- 
cause of  the  presumed  intention  of  the  parties,  though  not 
expressed;  or  it  may  exist  contrary  to  that  intention,  and 
without  regard  thereto.  There  is  no  permanency  attached 

I  185.     i  Pom.  Eq.  Jur.  §  1030. 


398  IMPLIED    TRUSTS  (Ch.    15 

to  such  a  trust,  but  in  its  place  there  is  the  right  of  the  ben- 
eficiary that  it  be  terminated  at  once,  and  the  legal  title  to 
the  property  be  vested  in  him.1 


RESULTING  TRUSTS. 

186.  When  the  legal  title  to  property  is  conveyed 

or  disposed  of,  but  the  terms  of  the  convey- 
ance or  disposition,  or  the  accompanying 
facts  or  circumstances,  show  that  the  bene- 
ficial interest  .s  not  intended  to  go  with  the 
legal  title,  a  trust  -will  result  by  operation 
of  law  in  favor  of  the  person  for  whom  the 
beneficial  interest  is  intended,  though  no 
trust  is  expressly  declared  in  his  favor. 

A  resulting  trust  is  founded  on  the  presumed  intention  of 
the  parties,  although  such  intention  is  not  expressed  by 
words  or  acts  creating  the  trust.  In  all  such  trusts  there 
must  be  a  conveyance,  and  circumstances  from  which  it  may 
be  inferred  that  the  transferee  was  not  to  become  the  bene- 
ficial owner  of  the  legal  estate,  but  that  a  trust  was  to  arise 
either  in  favor  of  the  person  executing  the  conveyance  or  of 
some  other  person  for  whose  benefit  the  conveyance  was 
made.1 

SAME— CLASSIFICATION. 

187.  Resulting  trusts  may  arise  in  either  of  the  fol- 

lowing cases: 

(a)  Where  an  owner  parts  -with  the  legal  estate, 

but  there  is  no  reason  to  infer  that  it  was 
his  intention  to  convey  the  beneficial  inter- 
est. 

(b)  Where  an  estate  is  conveyed  upon  a  trust  or 

for  some  particular  object  which  fails  either 
in  whole  or  in  part,  or  the  particular  trusts 

*  Cone  v.  Dunham,  59  Conn.  145,  20  Atl.  311.  8  L.  U.  A.  647. 
|  186.     i  Pom.  Eq.  Jur.  $  1031. 


§   187)  RESULTING   TRUSTS.  399 

are  so  indefinite  and  uncertain  that  they 
cannot  be  carried  into  effect,  or  they  lapse 
or  are  illegal. 

(c)  Where  the  conveyance  is  made  -without  con- 

sideration and  there  is  no  apparent  inten- 
tion that  the  grantee  is  to  take  beneficially. 

(d)  Where  the  purchaser  of  an  estate  pays  the 

purchase  money,  and  takes  the  title  in  the 
name  of  a  third  person. 

This  classification  is  similar  to  that  used  by  many  of  the 
text-book  writers,  although  many  of  them  have  classed  as  a 
resulting  trust  that  which  arises  where  a  person  standing  in 
a  fiduciary  relation  uses  fiduciary  funds  to  purchase  prop- 
erty, and  takes  the  title  in  his  own  name.1  Such  a  trust  has 
one  element  in  common  with  resulting  trusts,  and  that  is  the 
presumed  intention  of  the  purchase;  but  in  all  other  respects 
it  differs  from  those  trusts,  and  should  be  treated  as  a  con- 
structive trust.2 

Lord  Chancellor  Hardwicke  said  that  a  resulting  trust 
arising  by  operation  of  law  existed:  (i)  When  an  estate 
was  purchased  in  the  name  of  one  person,  and  the  consid- 
eration came  from  another.  (2)  When  a  trust  was  declared 
only  as  to  part,  and  nothing  was  said  as  to  the  residue,  that 
residue,  being  undisposed  of,  remained  to  the  heirs  at  law. 
And  he  observed  that  he  did  not  know  of  any  other  in- 
stances, unless  in  the  case  of  fraud.8  Prof.  Pomeroy,  in  his 
work  on  Equity  Jurisprudence,*  has  classified  resulting  trusts 
into  two  subdivisions:  (i)  Where  there  is  a  gift  to  A., 
but  the  intention  appears  from  the  terms  of  the  instrument 
that  the  legal  and  beneficial  estates  are  to  be  separated,  and 
that  he  is  either  to  enjoy  no  beneficial  interest  or  only  a  part 
of  it.  (2)  Where  a  purchase  has  been  made,  and  the  legal 
estate  is  conveyed  or  transferred  to  A.,  but  the  purchase 
price  is  paid  by  B.  In  the  first  subdivision  many  varieties 
of  resulting  trusts  are  included,  which  Prof.  Pomeroy  has 

8  187.     i  Perry,  Trusts,  §  125;   Bisp.  Eq.  p.  125. 
»  Pom.  Eq.  Jur.  §  1049,  note. 
«  Lloyd  v.  Spillet,  2  Atk.  150. 
«  Pom.  Eq.  Jur.  §  1031. 


400  IMPLIED    TRUSTS.  (Ch.   15 

again  subdivided  in  somewhat  the  same  manner  as  stated  in 
the  black-letter  text. 


SAME— WHERE  OWNER  OP  LEGAL  AND  EQUITABLE 
ESTATE  CONVEYS  LEGAL  TITLE  ONLY. 

188.  Wherever  it  appears,  upon  a  conveyance,  de- 
vise, or  bequest,  that  it  was  intended  that 
the  grantee,  devisee,  or  legatee  should  take 
the  legal  estate  only,  the  equitable  interest, 
or  so  much  as  remains  undisposed  of,  •will 
result,  if  arising  out  of  the  settlor's  realty, 
to  himself  or  his  heirs;  if  out  of  his  per- 
sonal estate,  to  himself  or  his  executors.1 

This  class  of  resulting  trusts  can  only  arise  in  cases  of  gifts 
or  voluntary  conveyances ;  for,  wherever  a  consideration  is 
paid  by  the  immediate  transferee,  the  presumption  that  a 
trust  was  intended  to  result  in  favor  of  the  settlor  is  at  once 
rebutted.*  Ordinarily,  a  conveyance  or  gift  to  a  wife  or 
child  will  be  presumed  to  carry  a  beneficial  interest,8  but 
such  presumption  may  be  overcome  by  the  attendant  cir- 
cumstances.* 

As  an  illustration  of  this  class  of  resulting  trusts,  where 
real  estate  was  devised  to  "my  trustees,"  but  no  trusts  were 
declared  in  relation  to  it,  it  was  held  that  the  trustees  must 
hold  it  in  trust  for  the  testator's  heir ;  for  by  the  expression 
"trustees,"  unexplained  by  anything  else  in  the  instrument, 
all  notion  of  a  beneficial  interest  being  intended  in  their 
favor  was  excluded.6 

$188.     i  Lewin.  Trusts,  115. 

*  Salisbury  v.  Clarke,  61  Vt  453,  17  AH  135;   Hogan  T.  Jacques, 
19  N.  J.  Eq.  123,  97  Am.  Dec.  644;   Moore  v.  Jordan,  65  Miss.  229,  3 
South.  737;  Brown  v.  Jones,  1  Atk.  188;  Kerlin  v.  Campbell  15  Pa, 
600. 

»  Hill  v.  Bishop  of  London.  1  Atk.  620;  Walton  v.  Walton,  14  Ves. 
822. 

*  Christ's  Hospital  v.  Budgln,  2  Vern.  683;  Grey  T.  Grey,  2  Swanst 
598;   Robinson  v.  Taylor,  2  Brown,  Ch.  594. 

«  Batteley  v.  Wlndle,  2  Brown,  Ch.  31;  Pratt  v.  Sladden,  14  VMU 
193;  Dawson  v.  Clarke,  18  Ves.  247. 


§    188)  RESULTING   TRUSTS.  401 

Whenever  expressions  are  used  in  the  instrument  which 
indicate  an  intention  to  benefit  the  donee,  no  trust  will  re- 
sult in  favor  of  the  donor  or  his  heirs.'  In  such  a  case, 
since  the  trust  results  from  the  terms  of  a  written  instru- 
ment, the  trustee  cannot  defeat  the  resulting  trust  by  parol 
evidence.7 


as  to  Residue. 

The  most  important  class  of  cases  under  this  form  of  re- 
sulting trusts  are  those  where  the  settlor  conveys  property 
on  trusts  which  do  not  exhaust  the  whole  estate.  The  rule 
is  that  where,  upon  a  conveyance,  devise,  or  bequest,  a  trust 
is  declared  of  a  part  of  the  estate  only,  or  the  purposes  of 
the  trust  do  not  exhaust  the  whole  beneficial  interest,  the 
trust  in  the  residue  will  result  to  the  settlor  or  his  heirs  ;  8 
the  reason  being  that  a  declaration  of  a  trust  as  to  a  part  of 
the  estate  is  evidence  that  the  settlor  did  not  intend  the 
donee  to  take  a  beneficial  interest  in  tne  whole,  but  that  the 
creation  of  the  trust  was  the  sole  object  of  the  transaction.* 
A  distinction  must,  however,  be  observed  between  a  devise 
to  a  person  for  a  particular  purpose,  with  no  intention  of 
conferring  the  beneficial  interest,  and  a  devise  with  a  view 
of  conferring  the  beneficial  interest  subject  to  a  particular 
direction.  If  a  gift  is  in  trust  to  a  person  to  pay  the  donor's 
debts,  it  is  a  gift  for  a  particular  purpose  ;  and,  if  that  pur- 
pose does  not  exhaust  the  estate,  and  that  estate  is  given  for 
no  other  purpose,  the  remainder  results  to  the  donor  or  his 
heirs.10  But,  if  the  gift  is  to  a  person  and  his  heirs,  char- 
ged with  the  payment  of  debts,  such  gift  is  for  a  particular 
purpose,  but  not  for  that  purpose  only,  and  an  intention  is 
presumed  to  make  the  gift  absolute,  subject  to  the  charge, 

•  Rogeis  v.  Rogers,  3  P.  Wms.  193;  Cook  T.  Hutchinson,  1  Keen, 
42;  Meredith  v.  Heneage,  1  Sim.  555. 

7  Langham  v.  Sandford,  17  Ves.  442;  Irvine  v.  Sullivan,  L.  R.  8 
Eq.  675. 

«  Parnell  v.  Kingston,  3  SmaJe  &  G.  337,  344;  Easterbrooks  v.  Til- 
lingbast,  5  Gray  (Mass.)  17;  Loring  v.  Eliot,  1C  Gray  (Mass.)  568; 
McCollister  v.  Willey,  52  Ind.  382;  Skellenger  v.  Skellenger,  32  N. 
J.  Eq.  059;  Schlessinger  v.  Mallard,  70  Gal.  326,  11  Pac.  728;  Weav- 
er v.  Leiman,  52  Md.  708;  Blount  v.  Walker,  31  S.  C.  13,  9  S.  E.  804. 

»  King  v.  Denison,  1  Ves.  &  B.  272,  per  Lord  Eldon. 

10  King  v.  Denison,  1  Ves.  &  B.  272;  McElroy  v.  McElroy,  113 
Mass.  509. 

EATON.EQ.—  28 


402  IMPLIED    TRUSTS.  (Ch.   15 

and  whatever  remains  after  the  charge  has  been  satisfied  will 
belong  to  the  donee,  and  will  not  result  to  the  donor  or  his 
representatives.11 

Any  expression  which  indicates  an  intention  that  the  donee 
should  be  benefited  after  the  particular  purposes  are  satis- 
fied will  prevent  a  trust  from  resulting.  For  instance,  ex- 
pressions of  affection  or  relationship  will  be  evidence  upon 
the  question  as  to  whether  a  trust  was  intended  to  result 
after  the  particular  trusts  are  satisfied.11 


SAME— ARISING  FROM  FAILURE  OF  EXPRESS 
TRUSTS. 

189.  Where  a  voluntary  disposition  of  property  is 
made,  by  will  or  deed,  to  a  person  as  trus- 
tee, and  the  trust  is  not  declared,  or  is  in- 
effectually declared,  or  fails  in  -whole  or  in 
part  by  lapse  or  because  of  illegality,  the 
interest  undisposed  of  •will  be  held  by  the 
trustee,  not  for  his  own  benefit,  but  as  a  re- 
sulting trust  for  the  donor  himself,  or  for 
his  heir  at  law  or  next  of  kin,  according  to 
the  nature  of  the  estate.1 

As  under  the  preceding  class,  a  resulting  trust  will  not 
arise  in  cases  under  this  class  unless  the  disposition  is  vol- 
untary, and  without  consideration.  A  plain  case  of  a  re- 
sulting trust  arising  as  described  above  is  where  a  gift  is 
made  to  a  person  upon  trust,  but  no  trusts  are  declared.  A 
leading  case  is  where  a  testator  gave  £200,000  to  his  execu- 
tors "for  the  purpose  I  have  before  named,"  but  no  purpose 
was  named,  and  it  was  held  that  a  resulting  trust  arose  in 
favor  of  the  residuary  legatees.2  And  also,  where  a  gift  is 

«  King  v.  Don  1  son,  1  Ves.  &  B.  272;  Walton  v.  Walton,  14  Ves. 
818;  Downer  v.  Church,  44  N.  Y.  647. 

«  Rogers  v.  Rogers.  3  P.  Wms.  193;  King  v.  Denison,  1  Ves.  & 
B.  274;  Hobart  v.  Comitiss,  Suffolk,  2  Vern.  644. 

I  189.     i  Hill.  Trustees.  113.  114. 

»  Mayor,  etc.,  of  Gloucester  v.  Wood,  3  Hare,  131;  Schmucker1* 
Estate  v.  Reel,  61  Mo.  592. 


§    189)  RESULTING    TRUSTS.  403 

made  upon  trusts  thereafter  to  be  declared,  and  no  declara- 
tion is  ever  made,  the  legal  title  only  will  pass  to  the  grantee 
or  devisee,  and  a  trust  will  result  in  favor  of  the  heirs  or  legal 
representatives  of  the  settlor.3  An  insufficient  declaration 
of  purpose — as  where  it  is  too  indefinite,  vague,  and  uncer- 
tain to  be  carried  into  effect — will  produce  the  same  result 
as  if  there  was  a  total  failure  of  declaration.* 

Failure  by  Lapse  or  for  Illegality. 

If  a  gift  fails  because  of  the  death  of  the  beneficiary  dur- 
ing the  lifetime  of  the  testator,0  or  by  the  dissolution  of  a 
corporation  or  other  organized  body  for  whose  benefit  a 
trust  is  created,6  a  resulting  trust  will  arise  in  favor  of  the 
donor's  heirs  or  legal  representatives,  if  the  property  is  not 
otherwise  disposed  of.7 

Where  a  person  has  intentionally  vested  property  in  an- 
other for  an  unlawful  purpose,  no  relief  will  be  afforded  the 
settlor,  and  a  court  of  equity  will  not  aid  him  in  recovering 
the  property.8  As  a  general  rule,  the  maxim,  "He  who 
comes  into  equity  must  come  with  clean  hands,"  applies  in  all 
such  cases.  A  common  application  of  this  rule  is  where 
conveyances  are  made  to  hinder,  delay,  and  defraud  credit- 
ors. Such  conveyances  will  not  be  set  aside  at  the  request 
of  the  grantor,  nor  will  a  resulting  trust  arise  in  his  favor,  or 
in  favor  of  his  heirs  and  legal  representatives.8  But  where 

»  City  of  London  v.  Garway,  2  Vern.  571;  Fitch  v.  Weber,  6  Hare, 
145;  Sturtevant  v.  Jaques,  14  Allen  (Mass.)  526;  Shaw  v.  Spencer, 
100  Mass.  388,  97  Am.  Dec.  107,  1  Am.  Rep.  115. 

<  Morice  v.  Bishop  of  Durham,  9  Ves.  399;  Ellis  v.  Selby,  7  Sim. 
352;  Leslie  v.  Duke  of  Devonshire,  2  Brown,  Ch.  187;  Shaw  v. 
Spencer,  100  Mass.  388,  97  Am.  Dec.  107,  1  Am.  Rep.  115;  Jenkins 
v.  University,  17  Wash.  160,  49  Pac.  247,  50  Pac.  785;  Nichols  v. 
Allen,  130  Mags.  211,  39  Am.  Rep.  445;  Heiskell  v.  Trout,  31  WT.  Va. 
810,  8  S.  E.  557. 

cAckroyd  v.  Smithson,  1  Brown,  Ch.  503;  Bond  v.  Moore,  90  N. 
C.  239. 

«  Easterbrooks  v.  Tillinghast,  5  Gray  (Mass.)  17. 

1 1n  re  Rudy's  Estate,  185  Pa,  359,  39  Atl.  968;  Edson  v.  Bartow, 
154  N.  Y.  199,  48  N.  E.  541. 

«  Ayerst  v.  Jenkins,  L.  R.  16  Eq.  285;  Symes  v.  Hughes,  L.  R.  9 
Eq.  475;  Haigh  v.  Kaye,  7  Ch.  App.  469;  Pawson  v.  Brown,  13  Ch, 
Div.  202. 

9  Francis  v.  Wilkinson,  147  111.  370,  35  N.  E.  150;  Barrow  v.  Bar- 
row. 108  Ind.  345,  9  N.  E.  371;  Risley  v.  Parker,  50  N.  J.  Eq.  284, 
23  Atl.  424;  Block  v.  Darling,  140  U.  S.  234,  11  Sup.  Ct.  832,  35  L. 
Ed.  476. 


404  IMPLIED    TRUSTS.  (Ch.    15 

the  illegal  purpose  is  not  carried  into  execution,10  or  the  re- 
tention of  the  property  by  the  trustee  would  effectuate  an 
unlawful  purpose,  defeat  a  legal  prohibition,  or  protect  a 
fraud,  a  trust  will  result  in  favor  of  the  grantor,  or  his  heirs 
or  legal  representatives.11 

SAME— CONVEYANCE  WITHOUT  CONSIDERATION. 

190.  Where  a  person  is  in  possession  of  an  estate 
under  a  conveyance  duly  executed,  but 
•without  valuable  consideration,  the  -want  of 
such  consideration  will  not  of  itself  create 
any  presumption  that  he  is  a  trustee  for 
the  grantor;  but  he  will  be  considered  en- 
titled to  the  enjoyment  of  the  beneficial 
interest,  unless  that  title  is  displaced  by 
sufficient  evidence  of  an  intention  on  the 
part  of  the  donor  to  create  a  trust.  The 
burden  of  proof  is  upon  the  person  seeking 
to  deprive  him  of  such  beneficial  interest.1 

This  is  the  modern  rule.  It  was  formerly  held  that,  if  a 
man  conveyed  his  estate  to  a  stranger  without  a  considera- 
tion, or  for  a  mere  nominal  one,  a  trust  resulted  to  the  own- 
er on  the  ground  that  the  law  would  not  presume  a  man  to 
part  with  his  property  without  some  inducement  thereto.2 
But  under  the  system  of  conveyancing  in  vogue  at  the  pres- 
ent time  the  former  doctrine  can  have  no  application,  unless 
it  should  occur  that  the  deed  simply  contains  words  of  trans- 
fer without  reciting  or  implying  a  consideration,  or  a  clause 
declaring  the  use  in  the  grantee."  But,  if  fraud  or  misrepre- 

10  Symes  v.  Hughes,  L.  R.  9  Eq.  475;    Mitchell  v.  Henley,  110  Mo. 
698,  19  S.  W.  993;    Williams  v.  Clink,  90  Mich.  297,  51  N.  W.  453. 

11  Underh.  Trusts  (Am.  Ed.)  p.  156.     When  the  parties  are  not  in 
pari  delicto,  and  where  public  policy  is  considered  as  advanced  by 
allowing  either  party,  or  at  least  the  more  excusable  of  the  two,  to 
sue  for  relief,  relief  is  given  to  him.    Reynell  v.  Sprye,  1  De  Gex, 
M.  &  G.  660.     And  see  Wheeler  v.  Kirtland.  23  N.  J.  Eq.  18. 

{  190.     iHlll.  Trust.-rs  (Mh  Am.  Ed.)  170. 

*  Story,  Eq.  Jar.  ff  1197,  1199. 

•  Gould  v.  Lj'iide,  114  Alus*.  OGO;    Osborn  r.  Osborn,  29  N.  J.  Eq. 


§    192)  RESULTING    TRUSTS.  405 

sentation  is  practiced  upon  a  grantor,  equity  will  impress  a 
trust  upon  the  conscience  of  the  fraudulent  grantee.4  And 
where  a  grantee,  through  the  influence  of  a  confidential  re- 
lation, acquires  title  to  property  without  consideration,  the 
court,  to  prevent  an  abuse  of  confidence,  may  impress  upon 
the  property  a  trust  in  favor  of  the  grantor's  heirs.0 


SAME— WHERE     PURCHASE     IS     IN    NAME    OP    AN- 
OTHER. 

191.  Such  purchase  may  be  either 

(a)  In  the  name  of  a  stranger,  or 

(b)  In  the  name  of  a  wife,  child,  or  near  relative. 

SAME— PURCHASE  IN  NAME  OP  STRANGER. 

192.  The  clear  result  of  all  the  cases,  -without  a  sin- 

gle exception,  unless  other-wise  provided 
by  statute,  is  that  the  trust  of  a  legal  es- 
tate, -whether  taken  in  the  names  of  the  pur- 
chaser and  others  jointly,  or  in  the  names 
of  others  -without  the  purchaser,  -whether 
jointly  or  successively,  results  to  the  man 
who  advances  the  purchase  money.1 

This  rule  is  founded  on  the  natural  presumption,  in  the 
absence  of  rebutting  circumstances,  that  the  person  who  fur- 
nishes the  purchase  money  intends  the  purchase  to  be  for 
his  own  benefit,  rather  than  for  that  of  another ;  and  that  the 
conveyance  in  the  name  of  the  latter  is  a  matter  of  conven- 
ience and  arrangement  between  the  parties  for  other  col- 

385;  Gerry  v.  Stimson,  60  Me.  186;  Miller  v.  Wilson,  15  Ohio,  108; 
Bank  of  U.  S.  v.  Housman,  6  Paige  (N.  Y.)  526;  Tillaux  v.  Tillaux, 
115  Cal.  663,  47  Pac.  691. 

*  Perry,  Trusts,  §  163. 

«  Goldsmith  v.  Goldsmith,  145  N.  Y.  313,  39  N.  E.  1067;  Myers  v. 
Jackson,  135  Ind.  136,  34  N.  E.  810;  Giffen  v.  Taylor,  139  Ind.  573, 
37  N.  E.  392;  Larmon  v.  Knight,  140  111.  232,  29  N.  E.  1116,  33  Am. 
St.  Hep.  229. 

S  192.     *  Lord  Chief  Baron  Eyre  in  Dyer  v.  Dyer,  2  Cox,  Ch.  93. 


406  IMPLIED    TRD8T8.  (Ch.    15 

lateral  purposes.2  If  only  part  of  the  purchase  money  is 
paid  by  a  third  person,  a  trust  results  pro  tanto.  But  such 
trusts  only  arise  when  the  proportionate  share  is  ascertain- 
able,  and  the  payment  was  distinctly  made  for  a  specific  part. 
In  such  trusts  the  interest  of  the  cestui  que  trust  is  deter- 
mined by  the  proportion  his  contribution  bears  to  the  total 
sum.8 

To  warrant  the  application  of  this  rule,  the  advancement  of 
the  purchase  money  must  be  made  by  the  person  as  pur- 
chaser, and  not  by  way  of  a  loan  to  a  person  in  whose  name 
the  legal  title  is  taken.4  And  the  purchase  money  must  be 
paid  at  the  time  the  purchase  is  made  to  create  a  true  re- 
sulting trust ;  and  no  subsequent  and  entirely  independent 
conduct,  intervention,  or  payment  on  the  part  of  the  pur- 
chaser will  be  effectual.6  As  Chancellor  Kent  has  stated: 
"If  A.  purchases  an  estate  with  his  own  money,  and  takes  the 
deed  in  the  name  of  B.,  a  trust  results  to  A.,  because  he  paid 
the  money.  If,  therefore,  the  party  who  sets  up  a  resulting 
trust  made  no  payment,  he  cannot  be  permitted  to  show  by 
parol  proof  that  the  purchase  was  made  for  his  benefit.  This 
would  be  to  overturn  the  statute  of  frauds.  Nor  would  a 
subsequent  advance  to  the  purchaser,  after  the  purchase  is 
complete  and  ended,  alter  the  case.  It  might  be  evidence  of 
a  new  loan,  or  a  new  agreement,  but  it  would  not  attach,  by 
relation,  a  trust  to  the  original  purchase ;  for  the  trust  arises 
out  of  the  circumstance  that  the  money  of  the  real,  and  not 
of  the  nominal,  purchaser  formed  at  the  time  the  consider- 
ation of  that  purchase,  and  became  converted  into  the 
land."  6  If  the  purchase  money  is  trust  money  in  the  hands 
of  the  purchaser,  this  rule  does  not  apply,  but  the  right  to 
charge  the  property  with  a  trust  may  be  enforced  notwith- 

«  Story,  Eq.  Jur.  §  1201. 

•  Fay  v.  Fay,  50  N.  J.  Eq.  260,  24  Atl.  103G;    Rogers  v.  Tyler,  144 
111.  652,  32  N.  E.  393;    Torrence  v.  Shedd,  156  111.  194,  41  N.  E.  95, 
42  N.  E.  171;    Speer  v.  Burns,  173  Pa.  77,  34  Atl.  212. 

«  Whaley  v.  Whaley,  71  Ala.  159;  Torrey  v.  Cameron,  73  Tex. 
583,  11  S.  W.  840.  And  see.  also,  Fowler  v.  Webster,  180  Pa.  610, 
87  Atl.  102. 

•  Lev!  v.  Evans,  6  C.  C.  A.  500,  57  Fed.  677;  Osgood  v.  Eaton,  62 
N.  H.  512;    Ryder  v.  Loomls,  161  Mass.  161,  36  N.  E.  836. 

•  Botsford  v.  Burr,  2  Johns.  Ch.  (N.  Y.)  408.     And  see  Olcott  v. 
Bynum,  17  Wall.  44,  21  L.  Ed.  570;   Mlduier  y.  Mlduier's  Ex'rs,  27 
K.  J.  Eq.  548. 


§   192)  RESULTING   TRUSTS.  407 

standing  the  fact  that  the  payment  was  made  subsequent  to 
the  purchase,  if  the  trust  funds  can  be  traced,  and  bona  fide 
purchasers  have  not  acquired  rights  in  the  land.7 

A  very  important  application  of  the  rule  is  where  the  pur- 
chase is  made  jointly.  If  several  persons  join  in  the  pur- 
chase of  land,  and  their  contributions  are  unequal,  then,  al- 
though the  legal  title  is  taken  in  the  name  of  all  jointly,  or 
in  the  name  of  one  only,  or  in  the  name  of  a  stranger,  a 
trust  results  to  each  of  them  in  proportion  to  the  amount 
originally  contributed.8  If,  however,  the  contributions  are 
equal,  and  the  legal  title  is  taken  in  the  name  of  all  jointly, 
a  court  of  equity,  acting  on  the  maxim  that  equity  follows 
the  law,  will  presume  that  the  creation  of  a  joint  tenancy 
was  intended,  and  consequently  no  trust  will  result  in  favor 
of  the  heirs  of  the  joint  tenant  as  against  the  survivor,  who, 
by  the  rules  of  law,  takes  the  entire  estate.8 

Parol  Evidence. 

Since  the  statute  of  frauds  extends  to  creations  or  decla- 
rations of  trusts  by  parties  only,  and  expressly  excepts  trusts 
arising  by  operation  or  construction  of  law,  it  is  competent 
for  the  real  purchaser  to  prove  his  payment  of  the  purchase 
money  by  parol,  even  though  it  be  otherwise  expressed  in 
the  deed.10  The  evidence  must  prove  the  fact  very  clear- 

f  Lehman  v.  Lewis,  62  Ala.  129;  Bourke  v.  Oallanan,  160  Mass.  195, 
35  N.  E.  460;  Gray  v.  Jordan,  87  Me.  140,  32  Atl.  793;  Gilchrist  v 
Brown,  165  Pa.  275,  30  Atl.  839;  Keith  v.  Miller,  174  111.  64,  51  N.  EL 
151. 

s  Lake  v.  Craddock,  3  P.  Wms.  158,  1  White  &  T.  Lead.  Cas.  Eq. 
265;  Lewis  v.  Association,  70  Ala.  276;  Somers  v.  Overhulser,  67 
Cal.  237,  7  Pac.  645;  Donlin  v.  Bradley,  119  111.  412,  10  N.  E.  11; 
Dow  v.  Jewell,  18  N.  H.  340,  45  Am.  Dec.  371;  McCully  v.  McCully, 
78  Va.  159;  ^ Parker  v.  Coop,  60  Tex.  111.  Some  of  the  cases,  how- 
ever, hold  that  a  trust  will  not  result  in  such  a  case,  unless  the  per- 
son in  whose  favor  it  is  sought  to  be  enforced  advanced  the  money 
for  some  specific  part  or  distinct  interest  in  the  land.  McGowan  v. 
McGowan,  14  Gray  (Mass.)  119,  74  Am.  Dec.  668;  Bailey  v.  Hemen- 
way.  147  Mass.  326,  17  N.  E.  645;  White  v.  Carpenter,  2  Paige  (N. 
Y.)  217,  239. 

9  Rigden  v.  Vallier,  3  Atk.  735.  But  under  modern  statutes  an 
estate  in  land  granted  or  devised  to  two  or  more  in  their  own  right 
is  presumed,  unless  otherwise  expressly  declared,  to  render  them 
tenants  in  common.  New  York  Real  Property  Law  (Laws  1896, 
c.  547),  §  56. 

»o  Lewin,   Trusts,   p.   667;    Ryall  v.   Ryall,   1   Atk.  59;  Lench   v. 


408  IMPLIED    TRUSTS.  (Ch.    15 

ly,11  though  circumstantial  evidence  is  admissible;  as,  where 
the  means  of  the  pretended  purchaser  were  so  limited  as  to 
make  it  impossible  for  him  to  have  paid  the  purchase  mon- 
ey.12 And  when  parol  evidence  is  admitted  it  must  be  con- 
vincing, as  the  burden  of  proof  is  on  him  who  seeks  to  es- 
tablish the  resulting  trust.13  Parol  evidence  is  also  admis- 
sible to  rebut  the  presumption  of  a  resulting  trust.14 

Modern  Legislation. 

On  studying  this  subject,  "the  thought  arises  that  in  this 
class  of  cases  equity  has  busied  itself  overmuch  with  the 
affairs  of  others,  and  that  some  observance  of  the  doctrine 
of  laissez  faire  would  not  have  been  an  unmixed  evil."  1B 
For  example,  when  a  person  paying  the  purchase  money  for 
land  directs  a  conveyance  to  be  made  to  a  stranger,  why 
should  it  not  be  presumed  that  a  gift  was  intended,  and  why 
should  the  purchaser  afterwards  be  permitted  to  assert  title 
by  way  of  a  resulting  trust?  Considerations  such  as  these 
have  led  to  the  enactment  of  statutes  in  several  states  abol- 
ishing this  class  of  resulting  trusts.  These  statutes  declare 
that  no  trust  shall  result  in  favor  of  the  person  paying  the 
consideration  as  against  the  grantee  named  in  the  convey- 
ance, unless  the  grantee  takes  the  title  without  the  knowl- 
edge of  the  person  paying  the  consideration,  or  unless  the 
grantee,  in  violation  of  a  trust,  purchases  the  land  with 
money  belonging  to  another  person.  Such  conveyances  are 

Lench,  10  Ves.  517.  See,  also,  Peabody  v.  Tarbell,  2  Gush.  (Mass.) 
232;  Boyd  v.  McLean,  1  Johns.  Ch.  (N.  Y.)  582;  McGuire  v.  Ram- 
Bey,  9  Ark.  518.  527;  Osborne  v.  Endicott,  6  Cal.  149,  05  Am.  Dec. 
498;  De  Peyster  v.  Gould,  3  N.  J.  Eq.  474,  480,  29  Am.  Dec.  723; 
Blodgett  v.  Hildreth,  103  Mass.  486;  McGinity  v.  McGlnity,  63  Pa. 
88. 

"  Gascolgne  v.  Thwlng,  1  Vern.  366;  Boyd  v.  McLean,  1  Johns. 
Ch.  (N.  Y.)  582;  Sandford  v.  Weeder,  2  Helsk.  (Tenn.)  71;  Shaw  v. 
Shaw,  86  Mo.  594;  Green  v.  Dietrich,  114  111.  636,  3  N.  E.  800; 
Laughlln  v.  Mitchell  (C.  C.)  14  Fed.  382;  Hayes'  Appeal,  123  Pa. 
110,  16  Atl.  600. 

i»  Willis  v.  Willis,  2  Atk.  71. 

i»  Burlelgh  v.  White,  64  Me.  53;  Whltmore  v.  Learned,  70  Me,  276; 
Hoover  v.  Hoover,  129  Pa.  201,  19  Atl.  854;  Phllpot  v.  Penn,  91  Mo. 
44,  3  S.  W.  386. 

»«  Tryon  v.  Huntoon,  67  Cal.  325,  7  Pac.  741;  Baker  v.  Vining,  30 
Me.  121,  1  Am.  Rep.  617;  Botsford  v.  Burr,  2  Johns.  Ch.  (N.  Y.)  405. 

»«  Underh.  Eq.  p.  67. 


§    193)  RESULTING   TRUSTS.  409 

also  declared  fraudulent  as  against  the  creditors  of  the  per- 
son paying  the  consideration,  and  a  trust  results  in  their 
favor.16  These  statutes,  however,  relate  only  to  real  prop- 
erty, and  do  not  apply  to  cases  of  personal  property.17 


SAME— PURCHASE  IN    NAME   OF  WIPE,    CHILD,    OB 
RELATIVE. 

193  If  the  purchaser  take  the  conveyance  in  the 
name  of  his  wife  or  child,  or  of  some  other 
person,  for  whom  he  is  under  some  natural, 
moral,  or  legal  obligation  to  provide,  the 
presumption  of  a  resulting  trust  is  re- 
butted, and  the  presumption  arises  that 
the  purchase  and  conveyance  were  intended 
as  an  advancement  for  the  nominal  pur- 
chaser.1 

Where  a  person  stands  in  such  relation  to  another  that 
there  is  an  obligation  resting  on  him  to  make  a  provision 
for  the  other,  a  purchase  or  investment  in  the  name  of  the 
other  will  be  presumed  to  be  in  discharge  of  that  obligation, 
and  therefore,  in  the  absence  of  evidence  to  the  contrary, 
the  purchase  or  investment  is  in  itself  evidence  of  a  gift ;  in 
other  words,  the  presumption  of  gift  arises  from  the  moral 
obligation  to  give.2 

A  leading  case  on  the  rule  as  above  stated  is  that  of  Dyer 
v.  Dyer,8  where  copyhold  premises  were  granted  to  Simon 
Dyer,  his  wife,  Mary,  and  his  son  William  (the  defendant), 
to  take  in  succession  for  their  lives  and  to  the  longest-lived 
of  them.  The  father  paid  the  purchase  money.  Simon 
Dyer  survived  his  wife,  and  died,  leaving  all  his  interest  in 
the  premises  to  a  younger  son  (the  plaintiff).  The  defend- 

i«  New  York  Real  Property  Law  (Laws  1896,  c.  547)  §  74.  And 
Bee  How.  Ann.  St.  Mich.  1883,  §§  5568-5571;  Gen.  St.  Minn.  1878, 
p.  553,  §§  7-9;  Sanb.  &  B.  Ann.  St.  Wis.  §§  2077,  2079;  Dassler's 
Comp.  Laws  Kan.  p.  996,  §§6-8;  2  Rev.  St.  Ind.  1888,  §§  2974,  2976. 

IT  Pom.  Eq.  Jur.  §  1042. 

f  193.     i  Perry,  Trusts,  §  143. 

a  Jessel,  M.  R.,  in  Bennet  v.  Bennet,  10  Ch.  Div.  474 

»  2  Cox,  Ch.  92,  2  White  &  T.  Lead.  Cas.  Eq.  236. 


410  IMPLIED    TRUSTS.  (Ch.    15 

ant,  William  Dyer,  claimed  that  the  insertion  of  his  name  in 
the  grant  operated  as  an  advancement  to  him  from  his  father 
to  the  extent  of  the  legal  interest  thereby  given  to  him. 
This  contention  was  sustained,  and  the  petition  of  the  young- 
er son  was  dismissed. 

When  a  purchase  is  made  by  a  parent  in  the  name  of  a 
child,  it  is  presumed  to  be  an  advancement,  and  not  a  trust.* 
This  presumption  is  rebuttable  by  evidence  or  circumstan- 
ces; as,  if  a  child  in  whose  name  the  purchase  is  made  is 
already  provided  for,  it  will  be  a  circumstance  to  be  con- 
sidered with  other  evidence,  but  it  will  not  of  itself  rebut 
the  presumption.  Lord  Loughborough  said  "that  a  pur- 
chase under  such  circumstances  by  a  father  in  the  name  of 
a  son  was  not,  but  might  be,  a  trust  for  the  father."  5  And 
so  an  advancement  is  presumed  when  the  person  who  pays 
for  the  property  purchased  is  under  any  natural  or  moral 
obligation  to  provide  for  the  person  receiving  the  convey- 
ance.6 If  the  purchaser  stands  in  loco  parentis  towards  the 
person  in  whose  name  the  purchase  is  made,  the  same  pre- 
sumption will  arise ; T  as  in  the  case  of  a  grandt'ather  and 
grandchild  where  the  father  is  dead,8  of  an  illegitimate 
child,9  and  the  nephew  of  a  wife  who  had  been  practically 
adopted  by  the  husband  as  his  child.10  But  the  mere  fact 
that  a  grandfather  took  care  of  his  daughter's  illegitimate 
child,  and  sent  it  to  school,  has  been  held  to  be  insufficient 
to  raise  the  presumption;  Vice  Chancellor  Wood  saying: 
"I  cannot  put  the  doctrine  so  high  as  to  hold  that,  if  a  per- 
son educate  a  child  to  whom  he  is  under  no  obligation,  ei- 

*  Dan  forth  v.  Briggs,  89  Me.  316.  36  Atl.  452;    Roberts  v.  Remy. 
56  Ohio  St.  249,  46  N.  E.  1066:   Oliphaut  v.  Levexsidge,  142  111.  160, 
30  X.  E.  334. 

5  Dyer  v.  Dyer,  2  Cox,  Ch.  92,  2  White  &  T.  Lead.  Cas.  Eq.  p.  236. 

«  Whitley  v.  Ogle,  47  N.  J.  Eq.  67,  20  Atl.  284;  Danforth  v.  Briggs, 
89  Me.  316,  36  Atl.  452;  Smithsonian  Inst.  v.  Meech,  169  U.  S.  398, 
18  Sup.  Ct.  396,  42  L.  Ed.  798.  No  such  presumption  arises  where 
tin-  purchase  Is  made  by  the  grantee's  brother.  Teegarden  v.  Lewis, 
145  Ind.  98,  40  N.  E.  1047,  44  N.  E.  9. 

i  Waterman  v.  Seeley.  28  Mich.  77;  Osborn  v.  Osborn,  29  N.  J. 
Eq.  385;  Read  v.  Huff,  40  N.  .7.  Eq.  229;  Wheeler  v.  Kldder,  105  Pa. 
270;  Tremper  v.  Barton,  18  Ohio,  ll,s. 

«  Kbrand  v.  Dancer,  2  Ch.  Cas.  26;    Loyd  v.  Read,  1  P.  Wms.  607. 

•  Beckford  v.  Beckford,  Lofft.  490;    Kilpin  v.  Kilpin,  1  Mylne  & 
K.  542. 

10  Currant  v.  Jago,  1  Colly. 


§    194)  CONSTRUCTIVE    TRUSTS.  411 

ther  morally  or  legally,  the  child  is,  therefore,  to  be  provid- 
ed for  at  his  expense."  X1  It  has  been  held  in  England  that 
a  purchase  by  a  mother  in  her  child's  name,  during  her  hus- 
band's lifetime,  does  not  give  rise  to  the  presumption  of  an 
advancement,  because  the  mother  is  under  no  legal  obliga- 
tion to  support  the  child  during  coverture.12  This  rule  is 
not  without  question,  as  it  would  seem  that  maternal  affec- 
tion is  a  sufficiently  strong  motive  for  the  bounty  of  the 
mother.18  But  where  a  husband  purchases  real  property 
with  his  wife's  money,  and  takes  the  title  in  his  own  name,  a 
resulting  trust  will  arise  in  favor  of  the  wife,  enforceable  by 
her  to  the  extent  of  the  money  invested.14  In  such  a  case, 
however,  the  wife  may  be  estopped  in  equity  from  claim- 
ing title  to  the  land,  where  her  husband's  creditors  have  been 
permitted  to  contract  with  him  in  reliance  upon  his  owner- 
ship of  the  property.16 


CONSTRUCTIVE   TRUSTS. 

194.  When,  on  the  grounds  of  justice  and  good 
conscience,  "without  reference  to  the  inten- 
tion of  the  parties,  equity  considers  the 
holder  of  the  legal  estate  not  to  be  entitled 
to  enjoy  the  equitable  or  beneficial  interest, 
it  treats  him  as  trustee.  Trusts  thus  created 
are  called  "  constructive  trusts." l 

An  exhaustive  analysis  would  disclose  the  fact  that  all  in- 
stances of  constructive  trusts,  properly  so  called,  may  be 
referred  to  what  equity  denominates  "fraud,"  either  actual  or 

11  Tucker  v.  Burrow,  2  Hem.  &  M.  515. 

12  in  re  De  Visme,  2  De  Gex,  J.  &  S.  17;    Bennet  v.  Bennet,  10 
Ch.  Div.  474. 

is  Sayre  v.  Hughes,  L.  R.  5  Eq.  376. 

i*  Light  v.  Zeller,  144  Pa.  570,  22  Atl.  1029;  Id.,  144  Pa.  582,  22 
Atl.  1025;  In  re  Lau's  Estate,  176  Pa.  100,  34  Atl.  969;  Fawcett  v. 
Fawcett,  85  Wis.  332,  55  N.  W.  405,  39  Am.  St.  Rep.  844;  Shupe  v. 
Bartlett  (Iowa)  77  N.  W.  455. 

15  Smith  v.  Willard,  174  111.  538,  51  N.  E.  835;  Moore  v.  Moore, 
165  Pa.  464,  30  Atl.  932. 

§  194.     i  Smith,  Eq.  p.  84, 


412  IMPLIED    TRUSTS.  (Ch.    15 

constructive.*  Mr.  Perry,  in  discussing  the  subject,  bases 
his  classification  upon  the  degree  and  nature  of  the  fraud 
which  has  given  rise  to  the  trust.  He  says:  "If  a  person 
obtains  the  legal  title  to  property  by  such  arts  or  acts  or 
circumstances  of  circumvention,  imposition,  or  fraud,  or  if 
he  obtains  it  by  virtue  of  a  confidential  relation  and  influ- 
ence under  such  circumstances  that  he  ought  not,  according 
to  the  rules  of  equity  and  good  conscience  as  administered  in 
chancery,  to  hold  and  enjoy  the  beneficial  interest  of  the 
property,  courts  of  equity,  in  order  to  administer  complete 
justice  between  the  parties,  will  raise  a  trust  by  construction 
out  of  such  circumstances  or  relations;  and  this  trust  they 
will  fasten  upon  the  conscience  of  the  offending  party,  and 
will  convert  him  into  a  trustee  of  the  legal  title,  and  order 
him  to  hold  it,  or  to  execute  the  trust  in  such  a  manner  as 
to  protect  the  rights  of  the  defrauded  party  and  promote 
the  safety  and  interests  of  society."  *  So  intimately  and 
closely  connected  are  the  doctrines  and  principles  of  fraud 
and  constructive  trusts,  it  would  be  profitless  to  duplicate 
the  discussion  already  had  under  the  head  of  fraud.4 

A  constructive  trust  is  created  without  consideration  of 
the  intent  of  the  parties.  Its  extent  and  operation  are  lim- 
ited to  the  purpose  for  which  it  is  created;  that  is,  to  fur- 
nish an  adequate  remedy  against  fraud.  Lord  Westbury 
observed:  "When  it  is  said  that  the  person  who  fraudu- 
lently receives  or  possesses  himself  of  trust  property  is  con- 
verted by  this  court  into  a  trustee,  the  expression  is  used  for 
the  purpose  of  describing  the  nature  and  extent  of  the  rem- 
edy against  him,  and  it  denotes  that  the  parties  entitled  ben- 
eficially have  the  same  rights  and  remedies  against  him  as 
they  would  be  entitled  to  against  an  express  trustee  who  had 
fraudulently  committed  a  breach  of  trust."  • 

«  Pom.  Eq.  Jur.  §  1044. 

»  Perry,  Trusts,  §  166;    Thompson  v.  Thompson,  16  Wis.  91;    Hol- 
llnsbead  v.  Siinma,  61  Cal.  158. 
4  Ante,  p.  283. 
•  Rolf e  T.  Gregory,  4  De  Gex,  J.  &  S.  576,  579. 


§    li)5)  CONSTRUCTIVE    TRUSTS.  413 


SAME— PURCHASES  WITH  TRUST  FUNDS. 

195.  When  a  trustee  or  other  person  in  a  fiduciary 
capacity  purchases  property  -with  the  fidu- 
ciary funds  in  his  hands,  and  takes  the 
title  in  his  own  name,  a  trust  arises  with 
respect  to  such  property  in  favor  of  the 
cestui  que  trust  or  other  beneficiary. 

This  form  of  trust  is  treated  by  many  of  the  writers  as  be- 
longing to  the  class  of  "resulting  trusts,"  but,  as  Mr.  Pome- 
roy  suggests,  it  is  always  established  in  invitum,  and,  al- 
though an  assumption  of  fraud  is  not  necessary,  some  ele- 
ment of  fraud,  actual  or  constructive,  is  generally  present.1 
It  would,  therefore,  seem  more  proper  to  classify  such  trusts 
under  the  head  of  constructive  trusts.  This  doctrine  ap- 
plies to  trustees,  executors,  and  administrators,  directors  of 
corporations,  guardians  of  infants,  committees  of  incompe- 
tent persons,  agents,  partners,  and  in  fact  to  all  persons  who 
are  in  fiduciary  relations  with  others.  It  is  based  upon  the 
assumption  that  the  purchaser  intended  to  act  in  pursuance 
of  his  fiduciary  relationship,  and  not  in  violation  of  it. 

As  an  illustration  of  the  extent  and  application  of  this  doc- 
trine, the  case  of  Ferris  v.  Van  Vechten  2  is  interesting  and 
instructive.  In  this  case  an  attempt  was  made  to  reach  land 
purchased  by  a  trustee  on  the  ground  that  it  was  paid  for 
with  trust  funds.  There  was  no  evidence  tending  to  show 
how  much  of  the  trust  funds  was  used  in  the  purchase,  and 
in  fact  there  was  no  positive  and  direct  evidence  that  the 
trustee  used  any  portion  of  the  trust  funds  in  making  the 
purchase."  The  court  refused  to  apply  the  doctrine,  assert- 
ing that,  while  the  general  rule  must  be  admitted,  it  is  not 
applicable  unless  the  trust  funds  can  be  clearly  and  distinct- 
ly traced,  and  positively  shown  to  have  been  used  in  the  pur- 
chase. The  relief  cannot  be  granted  upon  any  mere  infer- 
ence. 

§  195.     i  Pom.  Eq.  Jur.  §  1049,  note. 

2  73  N.  Y.  113.  And  see  Little  v.  Chadwick,  151  Mass.  110,  23  X. 
E.  1005,  7  L.  R.  A.  570;  Nonotuck  Silk  Co.  v.  Flanders,  87  Wis.  237, 
58  N.  W.  383. 


414  IMPLIED    TRUSTS.  (Ch.    15 

The  identity  of  the  fund  does  not,  however,  consist  in  the 
specific  pieces  of  money  or  bills,  but  in  the  general  charac- 
ter of  the  fund  out  of  which  the  payment  is  made ;  and  the 
fund  may  be  followed  so  long  as  its  general  character  can 
be  followed.8  And  where  a  trustee  purchases  an  estate  with 
trust  funds,  and  adds  funds  of  his  own  to  the  purchase  mon- 
ey, a  trust  will  arise  in  favor  of  the  cestui  que  trust ;  and  the 
burden  will  be  on  the  trustee  to  show  the  amount  of  his  own 
funds  in  the  purchase,  otherwise  the  cestui  que  trust  will  take 
the  whole  estate.4 

Bearing  an  analogy  to  this  class  of  cases  are  those  where 
trustees  or  agents  charged  with  the  duty  of  selling  property 
buy  for  themselves.  In  such  cases  such  trustees  or  agents 
will  be  held  to  be  constructive  trustees  for  their  cestuis  que 
trustent  or  principals.0  Nor  can  a  trustee  take  a  lease  of 
the  trust  property  from  himself ;  •  and  so  jealously  does  a 
court  of  equity  look  upon  a  trustee  becoming  a  lessee  of  such 
property  that  in  a  case  where  a  testator  had  given  a  trustee 
power  to  become  a  lessee  he  was  removed,  principally  upon 
the  ground  that  he  was  placed  in  a  position  in  which  his  in- 
terest necessarily  came  in  conflict  with  his  duty.7v  This  rule 
applies  to  a  renewal  of  a  lease  by  a  trustee,  executor,  part- 
ner, etc.,  for  his  own  benefit.8 

«  Thompson's  Appeal,  22  Pa.  16;   McLarren  v.  Beaver,  51  Me.  402. 

*  Russell  v.  Jackson,  10  Hare,  209;  McLarren  v.  Brewer,  51  Me. 
402;  Seaman  v.  Cook,  14  111.  505;   Persch  v.  Quiggle,  57  Pa.  247. 

e  Fox  v.  Mackreth,  2  Brown,  Ch.  400,  1  White  &  T.  Lead.  Cas.  Eq. 
141;  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192;  Lythe  v. 
Beveridge,  58  N.  Y.  592. 

«  Attorney  General  v.  Earl  of  Clarendon,  17  Ves.  491;  Ex  parte 
Hushes,  6  Ves.  617;  King  v.  Cushman,  41  111.  31,  89  Am.  Dec.  3(k5. 

t  Passingham  v.  Sherborn,  9  Beav.  4JJ4. 

•  Keech  v.  Sandford,  Sel.  Cas.  Ch.  61,  1  White  &  T.  Lead.  Cas.  Eq. 
53;   Mitchell  v.  Reed,  61  N.  Y.  123,  19  Am.  Rep.  252,— where,  in  dis- 
cussing renewals  of  leases  by  partners,  It  was  said:    "This  doctrine 
extends  to  commercial  partnerships;    and  one  of  several  partners 
cannot,  while  a  partnership  continues,  take  a  renewal  lease  clandes  , 
tiiu-ly,  or  'behind  the  backs'  of  his  associates,  for  his  own  benefit 

*  *  *  It  Is  of  no  consequence  whether  the  partnership  is  for  & 
definite  or  an  indefinite  period.  The  disability  to  take  the  lease  for 
individual  profit  grows  out  of  the  partnership  relation.  While  thtt 
lasts,  the  renewal  cannot  be  taken  for  individual  persons,  even 
though  the  lease  does  not  commence  until  after  the  expiration  of 
the  partnership.  It  cannot  necessarily  be  assumed  that  the  leas* 
can  be  taken  by  an  individual  member  of  the  firm,  even  after  disso- 


§    1'JG)  CONSTRUCTIVE    TRUSTS.  416 

In  no  case  will  a  trustee  or  other  person  charged  with  the 
performance  of  fiduciary  duties  be  permitted  to  make  a  profit 
by  dealing  with  the  fiduciary  funds  in  his  hands ;  •  and,  if 
he  makes  a  purchase  using  such  funds,  the  cestui  que  trust  or 
other  beneficiary  can  elect  to  treat  the  property  as  a  part  of 
the  trust  property,  and  he  is  entitled  to  all  the  advantages  of 
the  speculation  or  investment  thus  made  with  the  property 
in  the  name  of  the  trustee.10  The  restraint  put  upon  trus- 
tees in  dealing  with  the  trust  property  does  not  depend  upon 
any  question  of  fraud,  but  is  made  absolute  to  avoid  the  pos- 
sibility of  fraud.11  The  law  permits  no  one  to  act  in  the  in- 
consistent relation  of  selling  as  owner  and  purchasing  as 
trustee.  "It  does  not  stop  to  inquire  whether  the  contract' 
or  transaction  was  fair  or  unfair.  It  stops  the  inquiry  when 
the  relation  is  disclosed,  and  sets  aside  the  transaction,  or 
refuses  to  enforce  it,  at  the  instance  of  the  party  whom  the 
fiduciary  undertook  to  represent,  without  undertaking  to 
deal  with  the  question  of  abstract  justice  in  the  particular 
case.  It  prevents  fraud  by  making  it  as  far  as  may  be 
impossible,  knowing  that  real  motives  often  elude  the  most 
searching  inquiry;  and  it  leaves  neither  to  judge  nor  jury 
the  right  to  determine,  upon  a  consideration  of  its  advan- 
tages or  disadvantages,  whether  a  contract  made  under  such 
circumstances,  shall  stand  or  fall."  1S 


SAME— CONVEYANCE     OF     TRUST     PROPERTY     TO 
VOLUNTEER  OR   PURCHASER  WITH  NOTICE. 

196.  Where  trust  property  is  conveyed  or  trans- 
ferred by  the  trustee,  or  devolves  from  a 
trustee  to  a  third  person,  who  is  a  volun- 

lutlon.  The  former  partners  may  still  be  tenants  in  common,  or 
there  may  be  other  reasons  of  a  fiduciary  nature  why  the  trans- 
action cannot  be  entered  into." 

9  Landis  v.  Saxton,  89  Mo.  375,  1  S.  W.  359;   Ward  v.  Davidson, 
89  Mo.  445,  1  S;  W.  846. 

10  Perry,  Trusts,  §  128;    Hill,  Trustees,  534;    Lench  v.  Lench,  10 
Ves.  511;    Weaver  v.  Fisher,  110  111.  146;    Bent  v.  Priest,  86  Mo.  475. 

11  Perry,  Trusts,  §  129. 

12  Munson  v.  Railroad  Co.,  103  N.  Y.  58,  74,  8  N.  E.  355.     And  see, 
also,  Rich  v.  Black,  173  Pa.  99,  33  Atl.  880;   Miles  v.  Wheeler,  43 
111.  123. 


416  IMPLIED   TRUSTS.  (Ch.   15 

teer  or  purchaser  -with  notice  of  the  trust, 
it  is  a  universal  rule  that  such  volunteer, 
be  he  heir,  devisee,  successor,  or  other 
transferee  -without  consideration,  or  such 
purchaser  with  notice,  acquires  the  prop- 
erty subject  to  the  same  trust  which  existed 
before  such  transfer,  and  becomes  himself 
a  trustee  for  the  original  cestui  que  trust  ; 
provided  such  transfer  is  not  made  by  the 
trustee  in  executing  the  terms  of  an  ex- 
press trust.1 

This  rule  exists  for  the  protection  and  safeguard  of  the 
rights  of  beneficiaries.  It  enables  them  to  follow  trust  prop- 
erty into  the  hands  of  all  persons  who  may  become  pos- 
sessed therewith,  except  bona  fide  purchasers  without  no- 
tice.2 In  all  cases  of  voluntary  transfer,  although  the  trans- 
feree cannot  be  charged  with  fraud  or  unconscionable  con- 
duct, the  property  in  his  hands  is  impressed  with  a  trust  by 
construction.  The  trust  follows  the  property  so  transferred, 
and  the  holder  thereof  becomes  charged  with  the  duties  of 
the  original  trustee,  and  subject  to  his  liabilities.  But  where 
money  is  paid  by  a  trustee  to  his  creditor  in  settlement  of  an 
antecedent  debt,  and  such  creditor  is  ignorant  of  the  trust, 
this  rule  does  not  apply,  and  such  money  is  not  subject  to 
the  trust.1 

§  196.     i  Pom.  Eq.  Jur.  §  1048. 

*  Wetmore  v.  Porter,  92  N.  Y.  76;  Zimmerman  v.  Klnkle,  108  N. 
Y.  282,  15  N.  E.  407;  Musham  v.  Musham,  87  111.  80;  McVey  v.  Mc- 
Quulity,  97  111.  93;  Smith  v.  Ayer,  101  U.  S.  320,  25  L.  Ed.  955; 
Union  Pac.  Ry.  Co.  v.  McAlplne,  129  U.  S.  305,  314,  9  Sup.  Ct  286, 
32  h.  Ed.  673. 

a  Stephens  v.  Board,  79  N.  Y.  183,  35  Am.  Rep.  511;  Burnett  v. 
Gustafson,  54  Iowa,  86,  6  N.  W.  132,  37  Am.  Rep.  190;  Mills  v. 
Swearingen,  67  Tex.  269,  3  S.  W.  268. 


§    197)  CONSTRUCTIVE    TRUSTS.  417 


SAME— BEQUESTS     AND    DEVISES      OBTAINED 
THROUGH   FRAUD. 

197.  If  one  procures  a  devise  or  bequest  to  be  made 
in  his  favor  through  false  representations, 
assurances,  or  promises  that  he  will  apply 
the  property  devised  or  bequeathed  as  de- 
sired by  the  testator,  equity  •will  impress 
a  trust  upon  the  property  in  favor  of  the 
person  who  has  been  defrauded  of  the  testa- 
tor's intended  beneficence. 

It  is  fully  settled  that  a  court  of  equity  has  no  jurisdiction 
to  set  aside  a  will  procured  by  fraud ; *  but  it  is  as  well  set- 
tled that  equity  will  fasten  a  constructive  trust  on  a  partic- 
ular devise  or  bequest  procured  by  the  fraud  of  the  devisee 
or  legatee.  Thus,  if  a  bequest  is  made  on  the  faith  of  the 
legatee's  promise  to  apply  it  for  a  particular  purpose,  equity 
will  raise  a  constructive  trust  in  favor  of  the  person  for  whom 
it  was  promised  to  be  applied ;  and,  if  the  purpose  proves  to 
be  illegal,  then  a  constructive  trust  will  arise  in  favor  of  the 
heirs  and  next  of  kin.2  In  all  these  cases  cited  in  the  note 
it  was  steadily  claimed  that  a  plain  and  unambiguous  devise 
in  a  will  could  not  be  modified  or  cut  down  by  extrinsic  mat- 
ter lying  in  parol,  or  unattested  papers,  and  that  the  statute 
of  frauds  and  that  of  wills  excluded  the  evidence  ;  and  it  was 
as  steadily  answered  that  the  devise  was  untouched,  that  it 
was  not  at  all  modified,  and  that  the  property  passed  under 
it,  but  that  the  law  dealt  with  the  holder  for  his  fraud,  and 
out  of  the  facts  raised  a  trust  ex  maleficio,  instead  of  rest- 
ing upon  one  as  created  by  the  testator.3  So,  also,  when 
the  next  of  kin  prevents  the  making  of  a  bequest  by  promis- 

§  197.  i  Allen  v.  McPherson,  1  H.  L.  Gas.  191;  In  re  Broderick's 
Will,  21  Wall.  503,  22  L.  Ed.  599;  Colton  v.  Ross,  2  Palf>  (N.  Y.) 
396,  22  Am.  Dec.  648. 

2  In  re  O'Hara's  Will,  95  N.  Y.  403,  47  Am.  Rep.  53;  Curdy  v.  Ber- 
ton,  79  Gal.  420,  21  Pac.  858,  5  L.  R.  A.  189,  12  Am.  St.  Rep.  157; 
Williams  v.  Vreeland,  32  N.  J.  Eq.  135;  Hooker  v.  Axford,  33  Mich. 
454;  Dowd  v.  Tucker,  41  Conn.  197;  Gilpatrick  v.  Glidden,  81  Me. 
137,  16  Atl.  464;  Thynn  v.  Thynn,  1  Vern.  296. 

«  In  re  O'Hara's  Will,  95  N.  Y.  403,  413,  414,  47  Am.  Rep.  53. 

EATON.EQ.— 21 


418  IMPLIED   TliUSTS.  (Ch.   15 

ing  to  hold  the  property  for  the  benefit  of  the  intended  lega- 
tee, the  property  will  be  impressed  with  a  constructive  trust 
in  favor  of  the  legatee.4 

There  need  be  no  written  promise  to  carry  out  the  wishes 
of  the  testator.8  A  verbal  promise  or  representation,  if 
fraudulently  intended,  is  sufficient  to  raise  the  trust.*  And 
it  has  been  held  that  where  a  person,  by  silent  acquiescence, 
encourages  a  testator  to  make  a  devise  or  bequest  to  him, 
with  a  declared  expectation  that  he  will  apply  it  for  the  ben- 
efit of  others,  it  has  all  the  force  and  effect  of  an  express 
promise  to  so  apply  it,  for,  if  he  does  not  intend  so  to  do, 
his  silent  acquiescence  is  a  fraud.7 

«  Williams  v.  Fitch,  18  N.  T.  546.  The  same  principle  applies 
where  an  absolute  conveyance  Is  made  to  a  person  on  the  faith  of 
his  oral  promise  to  hold  it  for  another.  Flschbeck  v.  Gross,  112  111. 
208. 

»  Dowd  Y.  Tucker,  41  Conn.  197;  Williams  v.  Vreeland,  29  N.  J.  Eq. 
417. 

•  Pom.  Eq.  Jur.  §  1054.  The  preponderance  of  authority  seems 
now  to  be  In  favor  of  sustaining  the  trust  when  arising  from  a  mere 
verbal  promise.  In  re  O'Hara's  Will,  95  N.  Y.  403,  47  Am.  Rep.  53; 
Olliffe  v.  Wells,  130  Mass.  221;  Cagney  v.  O'Brien,  83  111.  72;  In  re 
Fleetwood,  15  Ch.  Dlv.  594. 

1 1n  re  O'Hara's  Will,  95  N.  Y.  403,  412,  47  Am.  Rep.  53;  Curdy  v. 
Berton,  79  Cal.  420,  21  Pac.  856,  5  L.  R.  A.  189,  12  Am.  St  Rep.  157. 


§  198-199)    POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.    419 

CHAPTER  XVI. 

POWERS,  DUTIES,  AND  LIABILITIES  OP  TRUSTEES. 

198-199.  Acceptance  of  Trust 

200.  Paramount  Duty  of  Trustee. 

201.  Duty  to  Acquire  Outstanding  Trust  Property. 

202.  Duty  to  Exercise  Reasonable  Care. 

203.  Delegation  of  Powers. 

204.  Duty  to  Invest. 

205.  Other  Duties  Respecting  Management  of  Trust  Property. 

206.  Liability  for  Acts  of  Co-Trustee. 

207.  Compensation  and  Expenses  of  Trustee. 
208-209.  Accounts  of  Trustees. 

210.     Following  Trust  Property. 
211-212.     Breach  of  Trust. 
213.    Removal  of  Trustee. 

ACCEPTANCE  OF  TRUST. 

198.  The  powers,  duties,  and  liabilities  of  a  trustee 

can  only  originate   upon  his  acceptance  of 
the  trust. 

199.  Acceptance  may  be 

(a)  Express. 

(b)  Constructive,   by   acts    done   by   the  trustee 

in  executing  the  trust. 

(c)  By  acquiescence. 

It  is  only  the  powers,  duties,  and  liabilities  of  trustees  of 
express  trusts  that  are  to  be  considered  in  this  chapter. 
Every  person  named  as  trustee  may  refuse  the  office  of  trus- 
tee ;  and  no  deed  of  renunciation  is  required,1  but  a  contin- 
ual refusal  to  act  under  the  instrument  creating  the  trust 
will  be  sufficient.2  A  person  intending  to  refuse  a  trust 
should  make  his  disclaimer  within  a  reasonable  time,  having 
regard  for  the  circumstances  of  the  particular  case.* 

§§  198-199.  i  Burritt  v.  Silliman,  13  N.  Y.  93,  64  Am.  Dec.  530; 
Dunning  v.  Bank,  61  N.  Y.  497,  19  Am.  Rep.  293. 

2  Adams  v.  Adams,  64  N.  H.  224,  9  Atl.  100;  In  re  Robinson,  37 
N.  Y.  261. 

s  Chid  gey  v.  Harris,  16  Mees.  &  W.  522;  Paddon  v.  Richardson,  7 
De  Gex,  M.  &  G.  563. 


420          POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.   1G 

Express  assent  to  the  terms  of  the  trust  is  not  necessary 
to  constitute  an  acceptance.4  The  exercise  of  any  act  of 
control  over  the  property — such  as  giving  notice  to  the  ten- 
ants to  pay  the  rents  to  himself  or  his  agent,  or  advertising 
the  property  for  sale — will  show  an  acceptance.8  An  act  of 
acquiescence — as  a  failure  to  object  when  a  trust  deed  is  read 
to  the  trustee,6  or  allowing  an  action  concerning  the  trust 
property  to  be  brought  in  his  name — will  raise  the  presump- 
tion of  acceptance.7 

When  once  the  trustee  has  accepted  the  trust,  he  cannot 
renounce  it  without  the  consent  of  the  beneficiaries,  or  the 
authority  of  a  court  of  equity,  or  by  complying  with  a  special 
power  for  such  purpose  contained  in  the  instrument  creat- 
ing the  trust.* 

PARAMOUNT  DUTY  OF  TRUSTEE. 

200.  The  paramount  duty  of  a  trustee  is  to  carry 
out  the  directions  contained  in  the  instru- 
ment creating  the  trust,  except  so  far  as 
they  are  contrary  to  good  morals,  or  are 
in  conflict  with  some  positive  law,  or  ex- 
cept so  far  as  some  statute  has  given  him 
a  discretion.1 

The  rules  fixed  by  law  governing  a  trustee's  duties  and 
liabilities  apply  only  when  the  instrument  creating  the  trust 
is  silent,  and  in  all  cases  the  trustee  must  conform  to  the 
directions  contained  in  the  trust  instrument.  As,  where  a 
trust  instrument  directs  a  sale  of  the  property  for  a  certain 

«  Thatcher  v.  St.  Andrew's  Church,  37  Mich.  2B4;  Martin  v.  Pax- 
son,  60  Mo.  200;  Flint  v.  Clinton  Co.,  12  N.  H.  432. 

e  Bence  v.  Gilpin,  L.  R.  3  Kxch.  76;  McBrlde  v.  Mclntyre,  91 
Mich.  406,  51  N.  W.  1113;  Crocker  v.  Lowenthal.  83  111.  579. 

«  Roberta  v.  Moseley,  64  Mo.  507;  Hanson  v.  Worthington,  12  Md. 
418. 

1 1x>rd  Montfort  v.  Lord  Cadogan,  17  Ves.  485. 

»  Doyle  v.  Blake,  2  Schoales  &  L.  245;  Read  v.  Truelove,  1  Arab. 
*17;  Switzer  v.  Sklles,  3  Oilman  (111.)  529,  44  Am.  Dec.  72.°. :  Diofen- 
dorf  v.  Spraker,  10  N.  Y.  24G;  Cruger  v.  Halliday,  11  Paige  (N.  Y.) 
314. 

S  200.    i  Pom.  Eq.  Jur.  §  1002;    Underh.  Eq.  p.  73. 


§  201)    DUTY  TO  ACQUIRE  OUTSTANDING  PROPERTY.       421 

price,  the  trustee  cannot  sell  for  less ;  2  and,  where  the  direc- 
tion is  to  sell  for  cash,  a  sale  on  credit  is  invalid.8  This  rule 
overshadows  and  modifies  all  other  rules  relative  to  the  du- 
ties of  trustees,  and  all  such  rules  must  be  read  as  if  they 
contained  an  express  declaration  that  they  are  subject  to  any 
provisions  to  the  contrary  contained  in  the  instrument  creat- 
ing the  trust.* 

DUTY  TO  ACQUIRE  OUTSTANDING  TRUST 
PROPERTY. 

201.  Unless  otherwise  directed  by  the  instrument 
creating  the  trust,  it  is  the  first  duty  of  the 
trustee  to  reduce  the  trust  property  to  his 
possession,  because  he  is  responsible  for  its 
security;  and  he  should  get  in  all  trust 
money  invested  on  insufficient  or  hazardous 
security. 

Debts  due  the  trust  estate  must  be  collected  with  all  rea- 
sonable diligence.  Money  should  not,  as  a  rule,  be  left  out- 
standing on  personal  security,  although  the  creator  of  the 
trust  himself  considered  it  sufficient.1  Trustees  will,  how- 
ever, be  allowed  the  exercise  of  a  fair  discretion,  and  are  not 
expected  to  commence  legal  proceedings  unnecessarily,  nor 
where  such  proceedings  would  be  useless ; a  but  they  will 
not  be  justified  in  granting  any  great  indulgence.3  They 
may,  in  the  exercise  of  a  sound  discretion,  release  or  com- 
pound a  debt.4  Money  invested  in  good  real-estate  securi- 

»  Cadwell  v.  Brown,  36  111.  103. 

»  Perry,  Trusts,  §  785;  Waterman  Y.  Spaulding,  51  111.  425;  Pal- 
mer v.  Williams,  24  Mich.  328.  And  see  In  re  Lewis,  81  N.  Y.  421; 
James  v.  Cowing,  82  N.  Y.  449. 

*  Underh.  Trusts,  art.  35. 

§  201.  i  Powell  v.  Evans,  5  Ves.  839;  Cross  v.  Petree,  10  B.  Mon. 
(Ky.)  413;  Neff's  Appeal,  57  Pa.  91;  Wills'  Appeal,  22  Pa.  325. 

2  Clark  v.  Holland,  19  Beav.  271. 

»  Lowson  v.  Copeland,  2  Brown,  Ch.  156;  Caffrey  r.  Darby,  6  Ves, 
488;  Harrington  v.  Keteltas,  92  N.  Y.  40;  O'Connor  v.  GifCord,  117 
N.  Y.  275,  22  N.  B.  1036. 

*  Blue  v.  Marshall,  3  P.  Wms.  381;    Bacot  v.  Heyward,  5  S.  C.  441. 
In  the  United  States  the  power  to  compromise  debts  is  very  gener- 
ally conferred  by  statute.     Perry,  Trusts,  §  482. 


422          POWERS,  DUTIES,  AND  LIABILITIES  OK  TRUSTEES.       (Ch.   16 

ties  need  not  be  called  in,  unless  it  is  necessary  for  the  pay- 
ment of  debts.8  If  bonds,  insurance  policies,  and  other 
choses  in  action  are  assigned  in  trust,  it  is  generally  safer 
for  the  trustee  to  notify  the  debtor  of  the  assignment,  since 
otherwise  payment  to  the  assignor  would  be  valid.8 


DUTY  TO  EXERCISE  REASONABLE  CARE. 

202.  Trustees  are  bound  to  exercise  such  due  dili- 
gence and  care  in  the  management  of  the 
trust  estate  as  men  of  ordinary  prudence 
and  vigilance  would  exercise  in  the  man- 
agement of  their  own  affairs. 

There  has  been  some  diversity  of  opinion  as  to  the  degree 
of  care  required  of  trustees.  It  is,  of  course,  impossible  to 
give  the  measure  of  culpable  negligence  for  all  cases,  as  the 
degree  of  care  required  depends  upon  the  subject  to  which 
it  is  applied.1  But  there  seems  to  be  no  conflict  in  the  mod- 
ern cases,  which  invariably  hold  that  a  trustee  is  bound  to 
employ  such  diligence  and  prudence  in  the  care  and  manage- 
ment of  the  trust  property  as  an  ordinarily  prudent  man 
would  exercise  in  managing  similar  affairs  of  his  own.2 

The  reason  for  the  rule  is  obvious.  Trusts  of  property 
are  generally  created  for  the  benefit  and  support  of  the 
young,  helpless,  and  inexperienced,  and  depend  for  their 
proper  administration  upon  the  honesty  and  capacity  of  those 
to  whom  they  are  confided.  From  the  fact  that  those  who 
are  most  immediately  interested  are  usually  incapable  of 
properly  guarding  their  own  interests,  and  must  necessarily 

»  Orr  v.  Newton,  2  Cox,  Cb.  274. 

«  Jacob  v.  Lucas,  1  Beav.  436;  Brashear  v.  West,  7  Pet  608,  8  L. 
Ed.  801;  Reed  v.  Marble.  10  Paige  (N.  Y.)  409. 

§  202.  i  First  Nat  Bank  of  Lyons  v.  Bank,  60  N.  T.  278,  19  Am. 
Rep.  181. 

2  King  v.  Talbot,  40  N.  Y.  76,  85;  Hun  v.  Gary,  82  N.  Y.  65,  37 
Am.  Rep.  546;  In  re  Cornell,  110  N.  Y.  351,  357.  18  N.  E.  142;  Car- 
penter v.  Carpenter,  12  R.  I.  544,  34  Am.  Rep.  716;  Shurtleff  v.  Rile, 
140  Mass.  213,  4  N.  E.  407;  Loud  v.  Winchester,  64  Mich.  23,  30  N. 
W.  81KJ;  Waterman  v.  Alden,  144  111.  90,  32  N.  E.  972;  Godfrey  v. 
Faulkner,  23  Ch.  Dlv.  483;  Smethurst  y.  Hastings,  30  Ch.  Dlv.  490, 
498. 


§    203)  DELEGATION    OF   POWERS.  423 

depend  so  much  on  the  good  faith  of  others,  the  court  will 
guard  their  rights  with  jealous  care,  and  scrutinize  closely 
the  conduct  of  trustees,  with  the  view  of  holding  them  to  a 
high  degree  of  responsibility  in  the  management  and  con- 
trol of  trust  estates.8 

If,  however,  trustees  act  in  good  faith,  within  the  limits  of 
the  powers  conferred,  using  proper  prudence  and  diligence, 
they  are  not  responsible  for  mere  mistakes  or  errors  of  judg- 
ment ;  *  nor  can  they  be  made  insurers  of  the  property. 
Applying  this  rule,  it  has  been  held  that  a  trustee  is  not  lia- 
ble for  a  loss  caused  by  some  avoidable  accident ;  *  nor  is  a 
trustee  liable  where  money  deposited  in  a  bank,  in  the  prop- 
er course  of  business,  is  lost  by  failure  of  the  bank.6  Trust 
moneys  must  remain  somewhere,  and,  in  the  usual  course  of 
business,  one  would  utilize  a  bank  for  that  purpose.  In  con- 
clusion it  should  be  borne  in  mind  that  the  creator  of  the 
trust  may  exempt  the  trustee  from  the  measure  of  liability 
imposed  by  law,  and  that  in  such  case  the  court  has  no  right 
to  impose  obligations  from  which  he  has  been  thus  re- 
lieved.7 

DELEGATION  OF  POWERS. 

203.  A  trustee  cannot  delegate  his  powers  or  du- 
ties either  to  a  stranger  or  co-trustee,  un- 
less authorized  by  the  instrument  creating 
the  trust,  or  unless  he  is  morally  obliged 
to  do  so  from  necessity,  and  the  powers  or 
duties  delegated  are  administered,  and  not 
discretionary,  and  are  such  as  may  prop- 

«  Crabb  v.  Young,  92  N.  Y.  56,  66. 

*  Pleasonton's  Appeal,  99  Pa.  362;  Williams  v.  Nichol,  47  Ark. 
254,  1  S.  W.  243;  Miller  v.  Proctor,  20  Ohio  St.  442;  Bowker  v. 
Pierce,  130  Mass.  2G2. 

B  Job  v.  Job,  6  Ch.  Dly.  562;  nor  by  theft,  Carpenter  v.  Carpen- 
ter, 12  R.  I.  544,  34  Am.  Rep.  716. 

«  Ex  parte  Belchier,  1  Amb.  219;  Johnson  v.  Newton,  11  Hare,  160; 
People  v.  Faulkner,  107  N.  Y.  477,  14  N.  E.  415.  As  an  illustration, 
it  was  held  that  a  trustee  is  not  responsible  for  receiving  depreci- 
ated Confederate  currency  in  payment  of  a  debt  due  the  trust  estate, 
where  he  acted  in  good  faith,  and  with  ordinary  prudence.  Doug- 
lass v.  Stephenson's  Ex'r,  75  Va.  747. 

i  Crabb  v.  Young,  92  N.  Y.  56;  Tuttle  v.  Gilrnore,  30  N.  J.  Eq.  617. 


424          Pv)\VKHS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.    1G 

erly   be    so    delegated   in    conformity  with 
common  business  usages. 

The  position  of  trustee  is  one  of  personal  confidence. 
The  rule  is  founded  on  the  maxim,  "Delegatus  non  potest 
delegare ;"  for  a  trustee  is  merely  an  agent  for  others,  and, 
being  personally  trusted  by  the  settlor,  he  cannot  delegate  to 
others  the  duties  which  were  confided  to  his  own  discretion.1 
This  rule  is  to  be  especially  enforced  where  the  powers  and 
duties  imposed  on  the  trustee  are  purely  discretionary.3 
And  in  no  case  will  a  trustee  be  permitted  to  convey  the  trust 
property  to  another  upon  a  trust  to  perform  the  original 
trust.3  A  trustee  vested  with  discretionary  power  to  sell 
land  cannot  authorize  an  agent  to  contract  for  its  sale.* 
But  there  have  been  cases  where  trustees  have  been  permit- 
ted to  employ  agents  to  assist  in  consummating  a  sale ;  5 
but  in  all  such  cases  it  would  seem  necessary  that  the  trus- 
tee be  present  at  the  sale,  and  retain,  personal  control  over 
all  matters  pertaining  to  the  transaction.6  If  a  trustee  dele- 
gates any  of  his  powers  and  duties,  he  is  liable  to  the  bene- 
ficiaries of  the  trust  for  all  losses  occasioned  by  the  fraud, 
neglect,  or  want  of  good  faith  of  his  delegate.7 

But  this  rule  does  not  prohibit  a  trustee  from  employing 
agents  to  administer  such  affairs  as  an  ordinarily  prudent 
man,  acting  in  his  own  behalf,  would,  in  the  usual  course  of 
business,  commit  to  an  agent.8  In  discussing  the  question 
of  the  employment  of  agents  and  their  remuneration,  Mr. 
Justice  Kekewich  has  said :  "A  trustee  certainly  has  the 
right  to  appoint  [agents]  if,  and  so  far  as,  the  work  of  the 
trust  reasonably  requires.  For  instance,  he  may  appoint  a 

|  203.     *  Underh.  Trusts,  art.  43. 

•  Hawley  v.  James,  5  Paige  (N.  Y.)  318. 

«  Morville  v.  Fowle,  144  Mass.  109,  10  N.  E.  7GG. 
4  Sebastian  v.  Johnson,  72  111.  282.  22  Am.  Rep.  144;    City  of  St 
Louis  v.  Priest,  88  Mo.  612. 

•  Connolly  v.  Belt,  5  Cranch,  O.  C.  405,  Fed.  Cas.  No.  3,117;   Gil- 
lespie  v.  Smith,  29  111.  473,  81  Am.  Dec.  328. 

•  Graham   v.   King,  50  Mo.   22,   11   Am.   Rep.   401;    Spurlock    v. 
Sproule,  72  Mo.  503;  Cushman  v.  Stone,  09  111.  516. 

»  Turner  v.  Corney.  5  Beav.  517;  City  of  St.  Louis  v.  Priest.  88 
Mo.  612;  Fuller  v.  O'Neil.  G9  Tex.  349,  6  S.  W.  181,  5  Am.  St  Rep. 
09;  Newton  v.  Bronson,  13  N.  Y.  587,  67  Am.  Dec.  89. 

•  Speight  T.  Gaunt,  9  App.  Cas.  L 


§    203)  DELEGATION    OF    POWERS.  425 

broker  to  make  or  realize  investments,  or  a  solicitor  to  do 
legal  business;  and  the  power  of  employment  involves  that 
of  remuneration  at  the  cost  of  the  trust  estate.  The  limit 
of  the  power  of  employment  is,  as  pointed  out  in  the  well- 
known  case  of  Speight  v.  Gaunt,  reasonableness ;  and  rea- 
sonableness must  also,  I' think,  be  the  limit  of  the  power  of 
remuneration.  A  trustee  is  bound  to  exercise  discretion  in 
the  choice  of  his  agents,  but,  so  long  as  he  selects  persons 
properly  qualified,  he  cannot  be  made  responsible  for  their 
intelligence  or  their  honesty.  He  does  not  in  any  sense 
guaranty  the  performance  of  their  duties.  It  does  not,  how- 
ever, follow  that  he  can  intrust  his  agents  with  any  duties 
which  they  are  willing  to  undertake,  or  pay  them  or  agree 
to  pay  them  any  remuneration  which  they  see  fit  to  demand. 
The  trustee  must  consider  these  things  for  himself,  and  the 
court  would  be  disposed  to  support  any  conclusion  at  which 
he  arrives,  however  erroneous,  provided  it  really  is  his  con- 
clusion,— that  is,  the  outcome  of  such  consideration  as  might 
reasonably  be  expected  to  be  given  to  a  like  matter  by  a  man 
of  ordinary  prudence,  guided  by  such  rules  and  arguments 
as  generally  guide  such  a  man  in  his  own  affairs."  • 

Delegation  to  Co- Trustee. 

Upon  a  similar  principle  as  in  the  case  of  a  delegation  of 
powers  and  duties  to  a  stranger,  a  trustee  is  not  justified  in 
leaving  the  whole  control  and  management  of  the  trust  es- 
tate to  a  co-trustee.  The  settlor  has  intrusted  the  trust  es- 
tate and  its  management  to  all  the  trustees,  and  the  benefi- 
ciaries are  entitled  to  the  benefit  of  their  collective  wisdom 
and  experience.10  And,  if  a  trustee  allows  his  co-trustee  to 
have  exclusive  control  of  trust  funds  and  property,  he  is 
liable  for  a^ny  loss  which  may  occur,  although  such  control 
only  extends  to  a  part  thereof.11  He  should  exercise  due 
caution  and  vigilance  in  respect  to  the  approval  of  and  ac- 
quiescence in  the  acts  of  his  co-trustees,  for,  if  he  delivers 
over  the  whole  management  to  others,  and  betrays  supine 
indifference  or  gross  negligence  in  regard  to  the  interests 
of  the  cestui  que  trust,  he  will  be  held  responsible.1* 

•  In  re  Weall,  42  Ch.  Div.  674. 

«  Luke  v.  Hotel  Co.,  11  Ch.  Div.  121. 

11  Spencer  v.  Spencer,  11  Paige  (N.  Y.)  299;    State  v.  Guilford,  18 
Obio,  500. 

12  Earle  v.  Earle,  93  N.  Y.  104,  113;    Clark  v.  Clark,  8  Paige  (N. 
Y.)  153,  160,  35  Am.  Dec.  676. 


426         POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.   16 


DUTY  TO  INVEST. 

204.  When  the  trust  money  cannot  be  applied, 
•within  a  reasonably  short  time,  to  the  pur- 
poses of  the  trust,  it  is  the  duty  of  the 
trustee  to  make  the  fund  productive  to  the 
cestui  que  trust,  by  the  investment  of  it  in 
some  proper  security.1 

It  is  the  duty  of  the  trustee  to  make  the  trust  property  as 
productive  as  is  consistent  with  its  security.  A  reasonable 
time  will  be  allowed  the  trustee,  after  coming  in  possession 
of  the  trust  funds,  within  which  to  make  the  investment,  and 
after  that  time  he  will  be  charged  with  the  lawful  interest 
which  would  have  been  obtained  had  he  exercised  reason- 
able care  and  diligence  in  making  the  investment ; 2  and, 
should  the  principal  fund  be  depleted  or  entirely  lost  be- 
cause of  such  delay,  he  will  be  charged  with  the  deficiency.3 

Kinds  of  Investments. 

The  creator  of  a  trust  may,  of  course,  specify  the  kind  of 
investment  to  be  made,  and  what  security  must  be  taken. 
Under  such  circumstances  the  trustee  is  bound  by  such  di- 
rections, and,  if  loss  is  occasioned  by  compliance  therewith, 
he  is  not  liable.  A  departure  from  such  directions  will  en- 
tail a  liability  upon  the  trustee  for  all  losses  which  may  be 
occasioned  thereby.4  In  the  absence  of  such  directions,  the 
trustees  must  be  governed  by  the  general  rules  of  the  court, 
or  by  the  statutes  and  laws  of  the  state  in  which  the  trust  is 
to  be  executed.  If  there  are  no  directions  in  the  instru- 
ment, nor  any  rules  of  the  court  nor  statutory  provisions 
regulating  instruments,  the  general  rule  again  applies  that 
the  trustee  must  act  with  the  care  that  an  ordinarily  pru- 
dent man  would  take  if  he  intended  to  make  an  investment 
for  the  benefit  of  other  people  for  whom  he  felt  morally 

8  204.     i  Lew  in,  Trusts,  p.  306. 

«  Lent  v.  Howard,  89  N.  Y.  109;  Crosby  v.  Merriam,  31  Minn  342, 
17  N.  W.  950;  In  re  Merkel's  Estate,  131  Pa,  584,  18  Atl.  931;  Het- 
fleld  v.  Debaud,  54  N.  J.  Eq.  371,  34  Atl.  882. 

»  Tom.  Eq.  Jur.  §  1072. 

«  Pom.  Eq.  Jur.  ff  1073;   Denike  v.  Harris,  84  N.  Y.  89. 


§    204)  DUTY    TO   INVEST.  427 

bound  to  provide, — greater  care  than  he  would  take  if  he  had 
only  himself  to  consider.6  This  necessarily  excludes  all  spec- 
ulation, all  investments  for  an  uncertain  and  doubtful  rise  in 
the  market,  and,  of  course,  everything  that  does  not  take 
into  view  the  nature  and  object  of  the  trust,  and  the  conse- 
quence of  a  mistake  in  the  selection  of  the  investment  to  be 
made.  And  it  does  not  follow  that,  because  prudent  men 
may,  and  often  do,  conduct  their  own  affairs  with  the  hope  of 
growing  rich,  and  therein  take  the  hazard  of  adventures 
which  they  deem  hopeful,  trustees  may  do  the  same.  The 
preservation  of  the  fund,  and  the  procurement  of  a  just  in- 
come therefrom,  are  primary  objects  of  the  creation  of  the 
trust  itself,  and  are  to  be  primarily  regarded.6 

In  England  no  rule  is  better  established  than  that  a  trus- 
tee cannot  lend  trust  funds  on  mere  personal  security,7  and 
Lord  Kenyon  said  that  it  "ought  to  be  sung  in  the  ears"  of 
every  one  who  acts  in  the  character  of  trustee.8  This  rule 
is  of  practically  universal  application  in  the  courts  of  this 
country.9  In  the  absence  of  express  authority,  the  employ- 
ment of  trust  funds  in  trade  or  speculation,  or  in  a  manu- 
facturing establishment,  will  be  a  gross  breach  of  trust.10 
This  rule  applies  even  where  the  trustee  simply  continues  the 
business  or  trade  of  a  testator.  It  is  the  duty  of  a  trustee 
to  close  up  the  trade  or  business,  to  withdraw  the  funds,  and 
invest  them  in  proper  securities  at  the  earliest  convenient 
moment.11  The  English  rule  is  against  the  investment  of 
trust  funds  in  the  stock  or  shares  of  banks  or  other  trading 
corporations ;  and,  where  no  directions  are  contained  in  the 

B  Whiteley  v.  Learoyd.  33  Ch.  Div.  347,  355;  King  v.  Talbot,  40 
N.  Y.  76;  Peckharn  v.  Newton,  15  R.  I.  321,  4  Atl.  758;  Waller's 
Adm'r  v.  Catlett's  Ex'rs,  83  Va.  200,  2  S.  E.  280;  Harvard  College 
v.  Amory,  9  Pick.  (Mass.)  447,  461. 

e  King  v.  Talbot,  40  N.  Y.  76,  86. 

i  Terry  v.  Terry,  Finch,  Prec.  273;  Darke  v.  Martyn,  1  Beav.  525. 

8  Holmes  v.  Dring,  2  Cox,  Ch.  1. 

»  Hpfford's  Ex'r  v.  Smith,  46  N.  J.  Eq.  216,  18  Atl.  1052;  Nobles 
v.  Hogg,  36  S.  C.  322,  15  S.  E.  359;  Simmons  v.  OlKer,  74  Wis.  633, 
43  N.  W.  561;  Harding  v.  Larned,  4  Allen  (Mass.)  426. 

10  Munch  v.  Cockerell,  5  Mylne  &  C.  178;    Kyle  v.  Barnett,  17  Ala. 
306.     And  see  Butler  v.  Butler,  164  111.  171,  45  N.  E.  426;    Wolfort  v. 
Reilly,  133  Mo.  463,  34  S.  W.  847;    Wan-en  v.  Bank,  157  N.  Y.  259, 
61  N.  E.  1036. 

11  Warren  v.  Bank,  157  N.  Y.  259,  268,  51  N.  E.  1036. 


4J8          POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.    16 

trust  instrument,  the  trustee  can  only  escape  personal  lia- 
bility by  investing  such  funds  in  real-estate  securities,  or  in 
the  public,  governmental  securities  of  the  British  govern- 
ment.112 In  Massachusetts  the  English  rule  has  been  de- 
clared to  be  wholly  inapplicable  to  the  conditions  existing  in 
this  country,18  and  in  most  of  the  other  states  there  has  been 
a  general  inclination  to  lessen  the  rigor  of  the  English  rule, 
and  it  would  seem  that  the  question  of  the  trustee's  liability 
will  be  governed  by  the  general  requirements  of  the  care  and 
diligence  of  an  ordinarily  prudent  man.14  The  English  rule 
prevails  in  New  York  and  Pennsylvania,  where  it  is  agreed 
that  trustees  cannot  invest  trust  funds  in  trade,  nor  direct- 
ly in  manufacturing,  nor  in  business  generally,  nor  in  per- 
sonal securities,  unless  there  is  an  authority  contained  in  the 
instrument  of  trust.15  In  England  trustees  are  advised  not 
to  advance  more  than  two-thirds  of  the  actual  value  of  an 
estate  on  mortgage  security;18  and  with  us,  as  well  as  in 
England,  loans  on  second  mortgages  are  regarded  with  dis- 
favor.17 

OTHER  DUTIES  RESPECTING  MANAGEMENT  OF 
TRUST  PROPERTY. 

205.  Among  the  other  duties  of  trustees  .in  re- 
spect to  the  care,  management,  and  control 
of  the  trust  estate  are  : 

(a)  They  shall  act  in  all  matters  pertaining  to 
the  trust  for  the  benefit  of  the  cestui  que 

«  Howe  v.  Earl  of  Dartmouth,  7  Ves.  137,  151;  Hume  v.  Rich- 
ardson, 4  De  Gex,  F.  &  J.  29;  Webb  r.  Jones,  39  Ch.  Div.  660. 

i»Lovell  v.  Minot,  20  Pick.  110,  32  Am.  Dec.  20G;  Brown  v. 
French,  125  Mass.  410,  28  Am.  Rep.  254;  In  re  Hunt,  141  Mass.  515. 
6  N.  E.  554. 

i«  McCoy  v.  Horwitz,  62  Md.  183;  Smyth  v.  Burns,  25  Miss.  422; 
IVi-kham  v.  Newton,  15  R.  I.  321,  4  Atl.  758.  ^ 

IB  King  v.  Talbot,  40  N.  Y.  76,  where  an  investment  in  canal,  oank. 
and  railroad  stock  was  disallowed;  Adair  v.  Brimmer,  74  N.  Y.  539, 
In  which  an  investment  in  a  coal  mining  company  stock  was  dis- 
favored. And  see  Hemphill's  Appeal,  18  Pa.  303;  Pray's  Appeals, 
34  Pa,  100;  Baer's  Appeal,  127  Pa.  360,  18  Atl.  1. 

i«  Lewln,  Trusts,  p.  325. 

"  Drosler  v.  Brereton,  15  Beav.  221;  Tuttle  v.  Gilmore,  36  N.  J. 
Eq.  617;  Williams  v.  McKay,  46  N.  J.  Eq.  25,  18  Atl.  824. 


§  205)     DUTIES  IN  MANAGEMENT  OF  TRUST  PROPERTY. 

trust,  and  shall  not  use  the  trust  property, 
nor  their  relation  to  it,  for  their  own  per- 
sonal advantage. 

(b)  They  shall  not  accept  any  position,  nor  enter 

into  any  relation,  nor  do  any  act  incon- 
sistent -with  the  interests  of  the  cestui  que 
trust. 

(c)  They  shall  not  sell  trust  property  to  them- 

selves, nor  buy  property  from  themselves 
for  the  trust  estate.1 

It  is  practically  an  impossibility  to  specify  in  detail  all  the 
duties  which  are  imposed  upon  the  trustee  by  virtue  of  his 
position.  Many  of  his  important  duties  may  be  classified 
in  the  above  subdivisions.  It  is  not  necessary  to  consider 
at  length  the  duties  above  referred  to.  In  the  preceding 
pages  of  this  chapter  attention  has  been  called  to  them  in 
connection  with  other  duties  of  trustees. 

The  first  and  most  important  duty  which  devolves  upon 
a  trustee  upon  his  acceptance  of  the  trust  is  that  he  shall 
manage  the  affairs  of  the  trust  entirely  and  exclusively  for 
the  benefit  of  the  cestui  que  trust.  All  the  power  and  in- 
fluence which  the  possession  of  the  trust  fund  gives  must 
be  used  for  the  advantage  and  profit  of  the  beneficial  own- 
ers, and  not  for  the  personal  gain  and  emolument  of  the 
trustee.2  No  other  rule  would  be  safe;  nor  would  it  be 
possible  to  apply  any  other  rule  as  between  trustee  and 
cestui  que  trust.3  In  the  preceding  chapter  on  frauds  we 
have  seen  that  transactions  between  persons  in  fiduciary  re- 
lations are  presumptively  invalid.4  For  the  same  reason,  .a 
trustee  is  not  allowed  to  profit  from  the  use  of  the  trust 
money  in  his  possession.  He  cannot  invest  such  money  in 
his  own  business,  nor  in  the  business  of  another  under  an 
arrangement  whereby  he  is  to  derive  benefit  or  advantage. 
In  all  such  cases  the  cestui  que  trust  is  entitled  to  the  profits 

{  205.     i  Pom.  Eq.  Jur.  §  1077. 
a  Perry,  Trusts,  §  427. 

s  Docker  v.   Somes,  2  Mylne  &  K.  664;    Bentley  v.  Craven,  18 
Beav.  75;  Parshall's  Appeal,  65  Pa.  233. 
*Ante,  p.  321, 


430         POWEKS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.    16 

made  by  the  transaction,  and  the  trustee  is  chargeable  with 
all  losses  resulting  therefrom.  As  has  been  said,  the  rule 
is  made  thus  stringent  that  trustees  may  not  be  tempted 
from  selfish  motives  to  embark  the  trust  funds  upon  the 
chances  of  trade  and  speculation.6 

In  no  event,  and  under  no  circumstances,  can  a  trustee 
set  up  a  claim  to  the  trust  property  adverse  to  the  cestui 
que  trust.6  He  cannot  assume  any  relation  or  perform  any 
act  which  is  in  conflict  with  the  interests  of  the  cestui  que 
trust.  Since  his  position  compels  him  to  act  for  the  sole 
benefit  and  advantage  of  his  beneficiary,  he  cannot  place 
himself  in  a  position  which  would  subject  him  to  conflict- 
ing duties,  or  expose  him  to  the  temptation  of  acting  con- 
trary to  the  best  interests  of  such  beneficiary.7 

As  we  have  seen,  where  a  trustee  purchases  for  himself 
trust  property,  such  sale  is  constructively  fraudulent,  and 
may  be  set  aside  at  the  option  of  the  cestui  que  trust.8  The 
rule  may  be  stated  thus :  When  a  trustee  sells  trust  prop- 
erty, and  becomes  himself  directly  or  indirectly  interested 
in  the  purchase,  the  sale  may  be  set  aside  at  the  election 
of  the  cestui  que  trust.9  This  rule  applies  whether  the  sale 
is  made  by  the  trustee  himself  or  under  a  decree  of  the 
court.10  And  equally  subject  to  criticism  is  a  transaction 
in  which  the  trustee,  having  authority  to  purchase,  buys, 
on  account  of  the  trust  estate,  property  in  which  he  has  an 
interest.11 

6  Perry,  Trusts,  §  429.  And  see  Sloo  v.  Law,  3  Blatchf.  459,  Fed. 
Cas.  No.  12.957;  Emerson  v.  Atwater,  7  Mich.  12;  Flagg  v.  Ely, 
1  Edm.  Sel.  Cas.  (N.  Y.)  206;  Davis  v.  Wright,  2  Hill,  Law  (S.  C.) 
5GO;  Itobbins  v.  Butler,  24  111.  387.  A  trustee  cannot  receive  gifts 
from  tenants.  Jacobus  v.  Munn,  38  N.  J.  Eq.  G22.  A  trustee  is 
chargeable  with  actual  profits.  Appeal  of  Baker,  120  Pa.  33,  13  Atl. 
487. 

«  Attorney  General  v.  Monro,  2  De  Gex  &  S.  163;  Shields  v.  At- 
kins, 3  Atk.  560;  Langley  v.  Fisher,  9  Beav.  90;  Benjamin  v.  Gill, 
45  Ga.  110. 

i  Pom.  Eq.  Jur.  8  1077. 

•  Ante,  p.  323. 

•  Price's  Adm'r  v.  Thompson,  84  Ky.  219,  1  S.  W.  408;    Golson  v. 
Dunlap.  73  Cal.  157,  14  Pac.  576;    Patterson  v.  Lennig,  118  Pa.  571, 
12  Atl.  679;    Bennett  v.  Austin,  81  N.  Y.  322. 

»o  Borders  v.  Murphy,  125  111.  577,  18  N.  E.  739. 

"Munn  v.  Burges,  70  111.  604;  Spencer's  Appeal,  80  Pa.  317; 
Pittsburg  Min.  Co.  v.  Spooner,  74  Wis.  307,  42  N.  W.  259,  17  Am.  St. 
Rep.  149. 


§    206)  LIABILITY    FOB   ACTS    OF   CO-TRUSTEE.  431 


LIABILITY  FOR  ACTS  OF  CO-TRUSTEE. 

206.  A  trustee  is  liable  for  the  acts  or  defaults  of 
a  co-trustee  in  which  he  has  himself  par- 
ticipated, or  which  he  has  permitted  or 
aided  by  his  own  negligence. 

Unless  trustees  have  mutually  agreed  to  be  bound  for 
each  other,  or  by  voluntary  co-operation  or  connivance  have 
enabled  each  other  to  violate  the  trust,  they  cannot  be  held 
liable  each  for  the  acts  of  the  other.1  But,  where  a  breach 
of  trust  has  affected  two  or  more  or  all  of  the  trustees  with 
a -common  liability,  they  are  each  liable  for  the  acts  of  the 
other.  In  such  a  case  each  is  liable  for  the  whole  loss 
sustained,  or  the  whole  amount  due,  and  a  decree  obtained 
against  them  jointly  may  be  enforced  against  any  one  of 
them.2 

The  general  rule  is  that  a  trustee  is  responsible  for  a 
breach  of  trust  committed  by  his  co-trustee  which  his  own 
negligence  has  rendered  possible,  or  with  which  he  failed 
to  interfere  after  obtaining  knowledge  that  it  was  being 
committed.8  And  a  trustee  or  executor  who  is  guilty  of 
any  fraud  pertaining  to  the  trust  will  not  be  able  to  escape 
liability  by  throwing  the  blame  on  his  colleague.4  There 
are  three  modes  by  which  a  trustee  may  become  liable  for 
the  acts  of  a  co-trustee,  according  to  the  ordinary  rules  of 
equity:  (i)  Where  one  trustee  receives  trust  money,  and 
hands  it  over  to  a  co-trustee,  without  securing  its  due  ap- 
plication ;  (2)  where  he  permits  a  co-trustee  to  receive  trust 

§  206.  i  Taylor  v.  Roberts,  3  Ala.  83;  Hlnson  v.  Williamson,  74 
Ala,  195;  Sutherland  v.  Brush,  7  Johns.  Ch.  (N.  Y.)  17,  11  Am.  Dec. 
383;  De  Haven  v.  Williams,  80  Pa.  480;  Ormiston  v.  Olcott,  84  N. 
Y.  339. 

*  Wilson  v.  Wilson,  1  Mylne  &  K.  126;   Hun  v.  Gary,  82  N.  Y.  65, 
37  Am.  Rep.  546;    Heath  v.  Waters,  40  Mich.  457.    And  see  Brice 
v.  Stokes,  11  Ves.  319,  2  White  &  T.  Lead.  Cas.  Eq.  967. 

«  Mucklow  v.  Fuller,  Jac.  198;  Booth  v.  Booth,  1  Beav.  125;  Rich- 
ards v.  Seal,  2  Del.  Ch.  266;  In  re  Niles,  113  N.  Y.  547,  21  N.  E. 
687;  Pirn  v.  Downing,  11  Serg.  &  R.  (Pa.)  71;  Crane  v.  Hearn,  26 
N.  J.  Eq.  378. 

*  Butler  v.  Butler,  5  Ch.  Div.  554;   Hinson  v.  Williamson,  74  Ala. 
180. 


432         POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.    16 

money  without  making  due  inquiry  as  to  his  dealing  with 
it;  (3)  where  he  becomes  aware  of  a  breach  of  trust,  either 
committed  or  meditated,  and  abstains  from  taking  the  nec- 
essary steps  to  obtain  restitution.6 

We  have  seen  that  a  trustee  cannot  delegate  the  entire 
control  and  management  of  the  trust  estate  to  his  co-trus- 
tee,6 and  it  follows  that  a  trustee  who  places  trust  funds 
into  the  power  of  a  co-trustee  is  liable  for  their  loss,  caused 
by  the  bankruptcy  or  embezzlement  of  the  co-trustee.  In 
a  New  York  case  7  the  rule  has  been  stated  thus :  "Where 
one  executor  or  trustee  receives  the  funds  of  the  estate, 
and  either  delivers  them  over  to  his  associate,  or  does  any 
act  by  which  the  funds  come  under  the  sole  possession  and 
control  of  the  latter,  and  but  for  which  he  would  not  have 
received  them,  the  executor  or  trustee  is  liable  for  the  loss 
which  is  sustained  in  consequence  of  such  action."  8  But 
this  rule  does  not  apply  when  the  money  is  remitted  to  the 
co-trustee  in  the  usual  course  of  business;  as,  for  example, 
to  pay  a  debt  to  a  creditor  residing  in  the  co-trustee's  neigh- 
borhood.8 

There  has  been  some  conflict  of  authority  as  to  the  lia- 
bility of  a  trustee  who  has  joined  his  co-trustee  in  a  receipt 
of  trust  moneys  paid  the  latter.  The  modern  rule  is  that, 
if  the  signature  of  all  the  trustees  is  formally  necessary  to 
the  receipt,  the  signature  of  a  trustee  to  whose  hand  the 
money  does  not  come  will  not  alone  render  him  liable  to 
account  for  it.10  It  is  reasonable  that,  in  a  case  in  which 
he  has  no  power  to  refuse  to  sign,  his  signature  alone  should 
not  impose  a  liability  upon  him.  But,  on  the  other  hand,  a 
person  who  joins  voluntarily  in  a  receipt  in  which  his  con- 
currence is  not  formally  required,  and  whose  interference  is 
therefore  unnecessary,  is  to  be  considered  as  assuming  a 
power  over  the  fund,  and  is,  therefore,  answerable  for  the 

•  Wats.  Comp.  Eq.  1005. 

•  Ante,  p.  423. 

i  Bruen  v.  Glllet,  115  N.  Y.  10,  14,  21  N.  B.  676,  4  L.  R.  A.  529. 

•  See,  also,  Langford  v.  Gnscoyne,  11  Ves.  333;  Williams  v.  Nixon, 
2  Beav.  472;    Croft  v.  Williams,  88  N.  Y.  384. 

•  Bacon  v.  Bacon,  5  Ves.  331. 

10  Brice  v.  Stokes,  11  Ves.  319,  2  White  &  T.  Lead.  Cas.  Eq.  1742, 
Stowe  v.  Bovven,  99  Mass.  194;  McKim  v.  Aulbach,  130  Mass.  481, 
39  Am.  Rep.  470;  Griffin's  Ex'r  v.  Macaulay's  Adm'r,  7  Grat  (Va.) 
470. 


§    207)         COMPENSATION    AND    EXPENSES   OF   TRUSTEE.  433 

application  thereof,  as  far  as  it  is  connected  with  the  par- 
ticular transaction  in  which  he  joins.11 

It  has  been  said  that  there  would  be  neither  wisdom  nor 
justice  in  a  rule  which  would  practically  end  in  making  a 
trustee  a  guarantor  of  the  diligence  and  good  faith  of  his 
associates,  and  hold  him  responsible  for  acts  which  he  did 
not  commit,  and  could  not  prevent.12  But  a  trustee  should 
exercise  due  caution  and  vigilance  in  respect  to  the  approval 
of  and  acquiescence  in  the  acts  of  his  co-trustee ;  and  where 
he  knows  of  and  assents  to  a  misapplication  of  the  trust 
funds,  or  negligently  suffers  his  co-trustee  to  receive  and 
waste  the  estate,  when  he  has  the  means  of  preventing  it  by 
proper  care,  he  will  be  liable  for  a  resulting  loss.1' 

COMPENSATION  AND  EXPENSES  OF  TRUSTEE. 

207.  In  England  the  services  of  a  trustee  in  exe- 
cuting: a  trust  are  gratuitous.  In  most  of 
the  states  of  this  country  it  is  customary 
to  allow  a  trustee  a  reasonable  compensa- 
tion. In  both  countries  a  trustee  is  enti- 
tled to  be  reimbursed  out  of  the  trust  prop- 
erty for  all  expenses  which  he  has  properly 
paid  or  incurred  in  the  execution  of  the 
trust. 

The  English  rule  proceeds  upon  the  well-known  principle 
invariably  acted  upon  by  courts  of  equity  that  a  trustee 
shall  not  profit  by  his  trust;  and,  as  it  is  further  stated  by 
Chancellor  Talbot:  "The  reason  seems  to  be  for  that  on 
these  pretenses,  if  allowed,  the  trust  estate  might  be  loaded, 
and  rendered  of  little  value.  Besides  the  great  difficulty 
there  might  be  in  settling  and  adjusting  the  quantum  of 
such  allowance,  especially  as  one  man's  time  may  be  more 
valuable  than  that  of  another;  and  there  can  be  no  hard- 
ship in  this  respect  upon  any  trustee  who  will  choose  whether 

11  Brice  v.  Stokes,  11  Ves.  319,  2  White  &  T.  Lead.  Cas.  Eq.  1742. 
i*  Ormiston  v.  Olcott,  84  N.  Y.  339. 

»s  Earle  v.  Earle,  93  N.  Y.  104;  In  re  Niles,  113  N.  Y.  547,  21  N. 
E.  687;  Croft  v.  Williams,  88  N.  Y.  384. 

EATON,EQ.— 28 


434         POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEE3.       (Ch.  16 

he  will  accept  the  trust  or  not."  x  It  matters  not  to  what 
extent  the  trustee  may  have  devoted  himself  to  the  duties 
of  the  trust,  or  to  what  extent  the  estate  has  been  thereby 
benefited.  The  trustee  can  claim  no  compensation  for  his 
personal  trouble  or  loss  of  time.*  The  only  exception  that 
exists  is  where  the  settlor  of  the  trust  authorizes  the  trustee 
to  charge  for  his  services.* 

In  most  of  the  American  states  statutes  have  been  enacted 
fixing  the  amount  of  compensation  to  be  allowed  trustees, 
and  in  those  states  where  no  such  statutes  have  been  en- 
acted the  courts  will  fix  such  amount.4  The  English  rule 
is  applied  in  all  cases  in  the  state  of  Delaware,6  and  seems 
to  prevail  in  Ohio  and  Illinois.6  It  has  been  said  "that  the 
state  of  our  country  and  the  habits  of  our  people  are  so 
different  as  to  have  induced  the  legislatures  of  nearly  all 
the  states  to  introduce  provisions  by  statute  for  competent 
remuneration  to  those  to  whom  the  law  commits  the  care 
and  charge  of  the  estate  of  infants  and  deceased  persons, 
and  the  courts  make  a  reasonable  allowance  to  receivers 
appointed  by  them,  besides  reimbursing  their  expenses ; 
*  *  *  and  the  equity  of  the  statute  is,  by  construction, 
generally  extended  to  conventional  trustees  where  the  in- 
strument is  silent."  7  If  the  instrument  creating  the  trust 
states  a  sum  that  is  to  be  paid  as  compensation  to  the  trus- 
tee, no  greater  amount  can  be  allowed. 

A  trustee,  both  in  England  and  in  this  country,  is  en- 
titled to  reimbursement  out  of  the  trust  property  for  all 

|  207.  i  Robinson  v.  Pett,  3  P.  Wms.  249,  2  White  &  T.  Lead. 
Cas.  Eq.  512. 

2  Moore  v.  Frowd.  8  Mylne  &  C.  50;  Brocksopp  v.  Barnes,  5  Madd. 
90;  Barrett  T.  Hartley,  L.  R.  2  Eq.  789. 

»  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  480;  Baker  v.  Martin,  8 
Sim.  2.-). 

4  Perry.  Trusts,  f  918,  and  note. 

•  Egbert  v.  Brooks,  8  Har.   (Del)   112;    State  r.   Platt,   4  Har. 
(Del.)  154. 

•  Cook  v.  Gllraore.  133  111.  139,  24  N.  E.  524;    Buckingham  v.  Mor- 
rison. 136  111.  437.  27  N.  E.  65. 

T  Boyd  v.  Hawkins.  17  N.  C.  334.  Mr.  Story  says:  "The  policy 
of  the  law  ought  to  be  such  as  to  Induce  honorable  men.  without 
a  sacrifice  of  their  private  Interests,  to  accept  the  office,  and  to  take 
•way  the  temptation  to  abuse  the  trust  for  mere  selfish  purposes, 
ns  tlio  only  indemnity  for  services  of  an  Important  and  anxious 
character."  Story,  Eq.  Jur.  §  1268,  note. 


§§  208-209)  ACCOUNTS  OP  TKUSTEES.  435 

expenses  which  he  has  properly  incurred  in  the  execution 
of  the  trust,  whether  it  is  so  provided  in  the  instrument 
creating  the  trust  or  not.8  Traveling  expenses,9  legal  ex- 
penses,10 and  proper  outlays  for  improvement  of  the  prop- 
erty,11 are  proper  expenditures,  and  will  be  allowed  the 
trustee.  And  he  will  be  allowed  for  salaries  and  commis- 
sions paid  to  an  agent  employed  in  good  faith  in  admin- 
istering the  trust.12  But,  while  a  trustee  is  allowed  ex- 
penses incurred  in  the  employment  of  attorneys,  yet,  if  he 
is  himself  an  attorney,  no  compensation  will  be  allowed 
him  for  professional  services  performed  by  himself,  on  the 
principle  that  he  cannot  use  his  position  so  as  to  make  profit 
for  himself;  and  this  rule  applies  as  well  in  the  United 
States  as  in  England.18  Not  only  is  the  trustee  entitled  to 
reimbursement  for  his  proper  expenses,  but  he  has  a  lien 
on  the  trust  estate  to  secure  them,  which  must  be  satisfied 
before  the  cestui  que  trust  can  compel  a  reconveyance  from 
the  trustee.14 

ACCOUNTS  OP  TRUSTEES. 

208.  A  trustee   should  keep  clear  and  accurate  ac- 

counts of  the  trust  property. 

209.  He  should  at  all  reasonable  times,  at  the  request 

of  a  beneficiary,  give  him.  full  and  accurate 

•  Hide  T.  Haywood,  2  Atk.  126;  Worrall  v.  Harford,  8  Ves.  4,  8; 
Wilkinson  v.  Wilkinson,  2  Sim.  &  S.  237;  Downing  v.  Marshall,  37 
N.  Y.  380,  389;  Rensselaer  &  S.  R.  Co.  v.  Miller,  47  Vt.  146;  Hobbs 
V.  McLean,  117  U.  S.  567,  6  Sup.  Ct.  870,  29  L.  Ed.  940;  Reynolds  v. 
Cridge,  131  Pa,  189,  18  Atl.  1010;  Towle  v.  Mack,  2  Vt.  19. 

»  Ex  parte,  Lovegrove,  3  Deac.  &  C.  763. 

10  Downing  v.  Marshall,  37  N.  Y.  380;    McElhenny's  Appeal,  46 
Pa.  347;    Brady  v.  Dilley,  27  Md.  570. 

11  Quarrell  v.  Beckford,  1  Madd.  269,  282. 

i»  Hopkinson  v.  Roe,  1  Beav.  180;  Parker  v.  Johnson,  87  N.  J. 
Eq.  366. 

"  Collier  v.  Munn,  41  N.  T.  145;   In  re  Corsellis,  34  Ch.  Dlv.  675. 

i«  In  re  Exhall  Coal  Co.,  35  Beav.  449;  Stott  v.  Milne,  25  Ch.  Dlv. 
710;  New  v.  Nicoll,  73  N.  Y.  127,  29  Am.  Rep.  Ill;  Ellig  v.  Naglee, 
9  Cal.  685;  Beatty  v.  Clark,  20  Cal.  11,  30;  Johnson  v.  Leman,  131 
III.  609,  23  N.  E.  435,  7  L.  R.  A.  656,  19  Am.  St.  Rep.  63;  Fox  worth 
r.  White,  72  Ala.  224;  Haydel  v.  Hurck,  72  Mo.  253;  Stewart  v. 
Fellows,  128  111.  480,  20  N.  E.  657. 


436         POWERS,  DUTIES,  *  ND  LIABILITIES  OF  TRUSTEES.       (Ch.   16 

information  as  to  the  amount  and  state  of 
tne  trust  proper*  ,  and  permit  -him  or  his 
attorney  to  inspect  the  accounts  and  vouch- 
ers, and  other  documents  relating  to  the 
trust.1 

Every  presumption  is  against  a  trustee  who  has  kept  no 
accounts,  or  who  has  kept  them  in  an  inaccurate  and  con- 
fused manner.2  The  accounts  of  a  trustee  are  always  sub- 
ject to  investigation  by  the  court,  and  he  must  render  proper 
accounts  whenever  summoned  so  to  do.8  A  trustee  is 
bound  to  give  his  cestui  que  trust  proper  information  as  to 
the  investment  of  the  trust  estate,  and,  where  the  trust  es- 
tate is  invested  on  mortgage,  it  is  not  sufficient  for  the 
trustee  merely  to  say,  "I  have  invested  the  trust  money  on 
mortgage,"  but  he  must  produce  the  mortgage  deeds,  so 
that  the  cestui  que  trust  may  thereby  ascertain  that  the 
trustee's  statement  is  correct,  and  that  the  trust  estate  is 
so  invested.* 

FOLLOWING  TRUST  PROPERTY. 

£10.  Where  trust  property  has  been  -wrongfully 
disposed  of  by  the  trustee,  the  cestui  que 
trust  may  assert  his  right  to  the  specific 
property  in  two  ways: 

(a)  He  may  follow  it  into  the  hands  of  the  per- 
son to  whom  it  has  been  wrongfully  convey- 
ed by  the  trustee,  unless  such  person  is  a 
bona  fide  purchaser,  for  value,  without  no- 
tice of  the  trust 

(b)  He  may  attach  and  follow  the  property  that 
has  been  substituted  for  the  trust  estate  so 

ft  208-209.    i  Underh.  Trusts,  art  48. 

«  Landis  v.  Scott,  32  Pa.  495;   In  re  Gaston  Trust  85  N.  J.  Eq.  60. 

•  Pearsc  v.  Green,  1  Jac.  &  W.  135.  And  see  Ahl's  Appeal,  129 
Pa.  43,  18  Atl.  471. 

«  Per  Chltty,  J.,  in  Re  Tillott  [1892]  1  Ch.  8ft.  See  Lee  r.  Wilson 
£1892]  1  Ch.  Diy.,  at  page  88. 


§  210)          FOLLOWING  TRUST  PROPERTY.  437 

long   as   the  substituted  property   can    be 
traced. 

As  we  have  seen,  if  a  person  purchases  trust  property 
with  notice  of  the  trust,  he  is  considered  in  equity  as  a  con- 
structive trustee,  and  subject  to  all  the  liabilities  of  a  trus- 
tee.1 If  the  trust  property  is  a  nonnegotiable  chose  in 
action,  such  as  a  bond,  the  purchaser  takes  subject  to  all 
equities,  whether  he  had  notice  or  not.  As  to  all  other 
classes  of  property,  however,  a  purchaser  who  in  good  faith 
acquires  the  legal  title  for  value  without  actual  or  con- 
structive notice  of  the  trust  will  be  protected,8  but  not  if  he 
is  a  mere  volunteer.8  In  short,  the  various  rules  relating 
to  bona  fide  purchasers  govern  in  determining  the  liability 
of  purchasers  of  trust  property.4 

As  a  general  rule,  so  long  as  trust  property  can  be  really 
identified  in  its  original  or  in  a  substituted  form,  it  belongs 
to  the  original  owner,  if  he  elects  to  claim  it;  and,  if  it 
passes  into  the  hands  of  an  innocent  purchaser  for  value, 
the  title  of  the  defrauded  owner,  at  his  option,  at  once  at- 
taches to  the  avails,  so  long  as  their  identity  is  preserved, 
without  regard  to  the  number  of  transmutations  through 
which  the  property  has  passed.8  But  when  the  cestui  que 
trust  is  unable  to  show  that  the  specific  property  claimed 
is  his,  or  that  the  trust  fund  has  gone  into  and  forms  a 
part  of  the  estate  he  seeks  to  charge,  he  has  no  preference 
or  lien  over  the  trustee's  other  creditors.6  A  leading  case 

I  210.  i  Ante,  p.  413.  And  see  Rolfe  T.  Gregory,  4  De  Gex,  J. 
&  S.  576;  Caldwell  v.  Carrington,  9  Pet  86,  9  L.  Ed.  60;  Jones' 
Adrn'r  y.  Shaddock,  41  Ala,  262;  Ryan  v.  Doyle,  31  Iowa,  53;  Smith 
T.  Walser,  49  Mo.  250. 

»  Bassett  v.  Nosworthy,  Gas.  t  Finch,  102,  2  White  A  T.  Lead. 
Cas.  Eq.  1;  Dillaye  v.  Bank,  51  N.  Y.  345. 

»  Mansell  v.  Mansell,  2  P.  Wms.  681;  Lyford  v.  Thurston,  16  N. 
H.  399;  Barr  T.  Cubbage,  52  Mo.  404. 

*  Ante,  p.  425. 

•  In  re  Hallett  [1894]  2  Q.  B.  Dly.  237;    Patten  r.  Bond,  60  Law 
T.  (N.  S.)  583;    Roca  v.  Byrne,  145  N.  Y.  182,  39  N.  E.  812;    Orcutt 
Y.  Gould,  117  Cal.  315,  49  Pac.  188;    Mutual  Ace.  Ass'n  of  the  North- 
west v.  Jacobs,  141  I1L  261,  31  N.  E.  414,  16  L.  R.  A.  516,  33  Am.  St. 
Rep.  302;    Gianella  v.  Momsen,  90  Wis.  476,  63  N.  W.  1018;    Pund- 
mann  v.  Schoenlch,  144  Mo.  149,  45  S.  W.  1112. 

6  Portland  &  H.  Steamboat  Co.  v.  Locke,  73  Me.  870;  Nonotuck 
Silk  Co.  v.  Flanders,  87  Wis.  237,  58  N.  W.  883. 


438          POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.    10 

illustrating  this  principle  is  that  of  In  re  Hallett's  Estate,1 
where  a  solicitor  held  for  his  client  certain  bonds,  upon 
which  he  collected  the  interest.  He  improperly  sold  some 
of  the  bonds,  and  deposited  the  proceeds  in  a  bank  in  his 
own  name,  and  subsequently  added  to  his  account  other 
money  of  his  own.  It  was  held  that  the  proceeds  of  the 
sale  of  the  bonds  could  be  followed  by  the  client,  and  the 
balance  in  the  bank  in  the  name  of  the  solicitor  could  be 
charged  therewith ;  Sir  George  Jessel,  M.  R.,  saying:  "Sup- 
posing the  trust  money  were  1,000  sovereigns,  and  the 
trustee  put  them  into  a  bag,  and  by  mistake,  or  accident, 
or  otherwise  dropped  a  sovereign  of  his  own  in  the  bag, 
could  anybody  suppose  that  a  judge  in  equity  would  find 
any  difficulty  in  saying  that  the  cestui  que  trust  has  a  right 
to  take  1,000  sovereigns  out  of  the  bag?"  The  modern 
rule  seems  to  be  that  a  cestui  que  trust  who  can  trace  the 
proceeds  of  the  trust  estate  into  a  fund  deposited  by  the 
trustee  in  his  own  name  is  entitled  to  a  charge  on  that 
fund,  which  takes  precedence  over  the  claims  of  the  gen- 
eral creditors  of  the  trustee.8  In  a  recent  case  in  the  fed- 
eral courts  it  was  said  by  Mr.  Justice  Bradley:  "Formerly 
the  equitable  right  of  following  misapplied  money  or  other 
property  into  the  hands  of  the  person  receiving  it  depend- 
ed upon  the  ability  of  identifying  it.  The  equity  attached 
only  to  the  very  property  misapplied.  This  right  was  lirst 
extended  to  the  proceeds  of  the  property,  namely,  to  that 
which  was  procured  in  place  of  it  by  exchange,  purchase, 
or  sale.  But  if  it  became  confused  with  other  property  of 
the  same  kind,  so  as  not  to  be  distinguished,  without  any 
fault  of  the  possessor,  the  equity  was  lost.  Finally,  how- 
ever, it  has  been  held  as  the  better  doctrine  that  com" 
does  not  destroy  the  equity  entirely,  but  converts  it  ir.to  a 

i  13  Ch.  DIv.  C.!)f,. 

•  Central  X:it.  P.nnk  v.  Insurance  Co.,  104  U.  S.  54.  2fi  L.  Ed.  r,'.i:>; 
Van  Alen  v.  Bank,  52  X.  Y.  1;  Third  Nat.  Bank  v.  Gas  Co..  36  Minn. 
7:..  :;n  X.  W.  440;  Kn-l:ir  v.  Offutt.  70  Md.  7S.  ir,  All.  4'.)7.  14  Am. 
St.  Rep.  332.  Xot  necessary  to  trace  trust  fund  Into  specific  prop- 
erty, but  only  into  estate  of  trustee.  McLeod  v.  Evans,  («»  Wis.  4<>0, 
23  N.  W.  173,  214,  57  Am.  Kep.  287;  Peak  v.  Kllirott,  30  Kan.  1.V-. 
1  Pac.  499,  40  Am.  Kep.  90;  Harrison  v.  Smith,  83  Mo.  210,  53  Am. 
Rep.  571.  See,  however,  Cavin  v.  Gleason,  103  X.  Y.  2r>G.  11  X.  K. 
&>4;  Continental  Xat.  Bank  v.  Wet-ins,  t;i)  Tex.  4S!>,  6  S.  W.  802,  5 
Am.  SL  Kep.  85;  Hopkins'  Appeal  (Pa.)  9  AtL  8G7. 


§§    211-212)  BREACH   OF  TRUST.  439 

charge  upon  the  entire  mass,  giving  to  the  party  injured 
by  the  unlawful  division  a  priority  of  right  over  the  other 
creditors  of  the  possessor."  9 

As  to  the  trustee  himself,  and  independent  of  the  rights 
of  others,  if  he  mixes  trust  funds  with  his  own,  he  is  clearly 
liable  to  the  cestui  que  trust  for  so  much  of  the  trust  funds 
as  he  cannot  prove  to  be  his  own.10  If  the  mingled  fund 
is  lost  by  accident  or  otherwise,  the  trustee  must  make 
good  the  loss ;  as,  where  he  deposits  trust  moneys  to  his 
individual  account  in  a  bank,  which  afterwards  fails.11  If 
he  purchases  land  partly  with  his  own  money  and  partly 
with  trust  money,  the  cestui  que  trust  has  clearly  a  lien  on 
the  whole  estate  for  the  amount  of  his  fund.12 


BREACH  OF  TRUST. 

311.  Every  violation  by  a  trustee  of  a  duty  -which 
equity  imposes  upon  him,  whether  willful 
or  fraudulent,  or  done  through  negligence, 
or  arising  through  mere  oversight  or  forget- 
fulness,  is  a  breach  of  trust.1 

212.  A  breach  of  trust  by  a  trustee  creates  a  per- 
sonal obligation  in  the  nature  of  a  simple 
contract  debt,  which  may  be  enforced 
against  the  trustee  or  his  estate  in  a  proper 
proceeding. 

•  Frelinghuysen  v.  Nugent  (C.  C.)  36  Fed.  229,  239.  And  see,  also, 
Peters  v.  Bain.  133  U.  S.  670,  10  Sup.  Ct.  354,  33  L.  Ed,  696;  Union- 
Nat.  Bank  ot  Chicago  v.  Goetz,  138  111.  127,  27  N.  E.  907;  Davenport 
Plow  Co.  v.  Lamp,  80  Iowa,  722,  45  X.  W.  1049,  20  Am.  St.  Rep.  442. 

10  Fellows  v.  Mitchell,  1  P.  Wms.  83;  Mason  v.  Morley,  34  Beav. 
475;  Morrison  v.  Kinstra,  55  Miss.  71;  Atkinson  v.  Ward,  47  Ark. 
533,  2  S.  W.  77;  Page's  Ex'rs  v.  Holeman,  82  Ky.  573. 

n  The  rule  is  the  same  whether  or  not  the  trustee  has  funds  of 
his  own  in  the  bank.  Williams  v.  Williams,  55  Wis.  300,  12  X.  W. 
465,  13  N.  W.  274,  42  Am.  Rep.  708;  Norris  v.  Hero,  22  La.  Ann. 
605;  Naltner  v.  Dolan,  108  Ind.  500,  8  N.  E.  289,  58  Am.  Rep.  61. 

12  Lane  v.  Dighton,  1  Anib.  409;  Hopper  v.  Conyers,  L.  R.  2  Eq. 
549;  Braze!  v.  Fair.  26  S.  C.  370,  2  S.  E.  293;  Houghton  v.  Daven- 
port. 74  Me.  590. 

i§  211-212.     i  Pom.  Eq.  Jur.  §  1079. 


440         POWEKS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.   16 

WJ>at  Constitutes  Breach  of  Trust 

Mr.  Pomeroy  has  said  that  the  term  "breach  of  trust" 
includes  "every  omission  or  commission  which  violates  in' 
any  manner  either  of  the  three  great  obligations  of  carry- 
ing out  the  trust  according  to  its  terms,  of  care  and  dili- 
gence in  protecting  and  investing  the  trust  property,  and  of 
using  perfect  good  faith."  2  The  office  of  trustee  is  one  of 
great  personal  responsibility,  and  he  must  bring  to  bear  in 
the  performance  of  his  duties  the  best  of  his  energies  and 
abilities.  He  cannot  carelessly  neglect  his  lawful  obligations 
as  such  trustee,  and  much  less  willfully  or  fraudulently  con- 
nive to  profit  by  his  position.  All  parties  to  a  breach  of 
trust  are  equally  liable,  and  there  is  between  them  no  pri- 
mary liability;  nor  is  this  liability  confined  to  the  express 
trustees,  but  extends  to  all  who  are  actually  privy  to  the 
breach.8 

Liability  for  Breach  of  Trust  and  Enforcement  Thereof. 

It  is  not  feasible  to  specify  the  great  number  of  violations 
for  which  a  trustee  may  be  made  liable  to  his  cestui  que 
trust,  and  the  rules  pertaining  thereto  are  altogether  too 
numerous  to  be  discussed  in  a  work  of  this  kind.  Refer- 
ence may  be  had  to  the  various  treatises  on  trusts  for  a 
full  discussion  of  these  rules.4  If  the  trustee  is  solvent, 
an  equitable  action  to  compel  compensation  for  the  loss 
which  the  trust  estate  has  sustained  is  the  proper  and  ef- 
fective remedy;  '  and  such  an  action  may  not  only  be  brought 
against  the  trustee,  but  against  his  representatives.'  The 
claim,  however,  ranks  only  as  a  simple  contract  debt,7  un- 
less the  trust  instrument  contains  a  covenant,  express  or 
implied,  for  the  payment  of  the  trust  fund,  and  has  been 
executed  by  the  trustee.*  If  the  trustee  becomes  insolvent, 


»  Wilson  v.  Moore,  1  Mylne  &  K.  126;  Cowper  v.  Stoneham,  68 
Law  T.  (N.  S.)  18;  Blyth  v.  Fladgate  [1891]  1  Ch.  Dlv.  337. 

«  Perry,  Trusts  (5th  Ed.)  c.  27. 

B  Long  v.  Fox,  100  111.  44;  Oliver  v.  Platt,  3  How.  333,  11  L.  Ed. 
622;  Lathrop  v.  Bampton,  31  Cal.  17,  89  Am.  Dec.  141;  Calhoun  v. 
Burnett  40  Miss.  599. 

•  Devaynes  v.  Hoblnson,  24  Beav.  86. 

i  Vernon  v.  Vawdry,  2  Atk.  119;  Little  v.  Chadwlck,  151  Mass. 
10!l.  23  N.  E.  1005.  7  L.  R.  A.  570. 

»  Isaac-ana  v.  Harwood,  3  Ch.  App.  225;  Richardson  v.  Jenkins, 
1  Drew.  477. 


§§    211-212)  BREACH    OF   TBUST.  441 

his  indebtedness  to  the  trust  is  provable  against  his  estate.* 
In  all  cases  the  cestui  que  trust  is  entitled  to  recover  an 
amount  which  will  fully  reimburse  him  for  the  loss  sustained 
by  the  breach.10 

The  remedy  of  a  cestui  que  trust  who  is  sui  juris  may 
be  barred  by  his  acquiescence  or  concurrence ;  "  but  persons 
under  disability  do  not  lose  their  remedy  unless  they  have, 
by  their  own  fraud,  induced  the  breach  of  trust.12  Mis- 
representation or  concealment  by  the  trustee  bars  the  de- 
fense of  acquiescence,  and  vitiates  a  release  given  by  the 
cestui  que  trust.13  And  a  cestui  que  trust  may  be  debarred 
from  relief  by  long  acquiescence  in  a  breach  of  trust,  though 
he  did  not  originally  concur  in  it;14  as,  where  beneficiaries 
have  for  many  years  seen  purchasers  of  trust  property  erect 
thereon  valuable  improvements  without  objection,  they  are 
estopped  from  setting  up  title  thereto.1* 

Bar  of  Statute  of  Limitations. 

As  a  general  rule,  lapse  of  time  is  not  a  defense  to  a 
beneficiary's  right  of  action  for  a  breach  of  trust.  But 
nevertheless  a  great  delay  after  a  discovery  of  the  breach 
may  be  a  bar.1'  It  has  been  held  in  a  number  of  cases  that 
equity  will  not  lend  its  aid  to  establish  or  enforce  a  stale 
trust;  and,  when  there  has  been  great  delay  in  bringing 
suit,  even  though  the  trustee  has  fraudulently  concealed  the 
facts  from  the  beneficiary,  the  latter  must  definitely  set  forth 
in  his  bill  the  cause  of  his  ignorance,  the  impediments  to 
an  earlier  prosecution  of  the  claim,  the  means  used  by  £he 
trustee  to  mislead  him,  and  how  and  when  he  acquired  a 

»  Ex  parte  Shakeshaft,  3  Brown,  Ch.  197. 

10  Pom.  Eq.  Jur.  §  1080;    Robinson  v.  Robinson,  1  De  Gex,   M. 
&  G.  247;    In  re  Grabowski's  Settlement,  L.  R.  6  Eq.  12;    Dilworth's 
Appeal,  108  Pa.  92;   Zimmerman  v.  Fralcy,  70  Md.  561,  17  Atl.  560; 
Rowley  v.  Towsley,  53  Mich.  329,  19  N.  W.  20. 

11  Brice  v.  Stokes,  11  Ves.  319;   Walker  v.  Symonds,  3  Swanst.  1, 
64;  Zimmerman  v.  Fraley,  70  Md.  564,  17  Atl.  560;  McCoy  v.  O'Don- 
nell,  56  Md.  197;    Pope  v.  Farnsworth,  146  Mass.  339,  16  N.  E.  262; 
Butterfield  v.  Cowing,  112  N.  Y.  486,  20  N.  E.  3G9. 

"  Lord  Montford  v.  Lord  Cadogan,  19  Ves.  636,  639,  640. 
i»  Adams  v.  Clifton,  1  Russ.  297;   Jones  v.  Lloyd,  117  111.  597,  7 
N.  E.  119;    Shartel's  Appeal,  64  Pa.  25. 

i«  Perry,  Trusts,  §  850.    And  see  Villines  v.  Norfleet,  17  N.  C.  167. 
IB  Iverson  v.  Saulsbury,  65  Ga.  724. 
is  Pom.  Eq.  Jur.  i  1083. 


POWERS,  DUTIES,  AND  LIABILITIES  OK  TRUSTEES.        (Ch.    1G 

knowledge  of  his  rights.17  But  the  statute  of  limitations  is 
itself  no  bar,  in  the  absence  of  express  words  in  the  statute 
applying  to  such  actions.  It  can  in  no  event  be  more  than 
a  guide  to  the  court  in  determining  what  constitutes  laches. 
Against  an  express  and  continuing  trust  time  does  not  run 
until  repudiation  or  adverse  possession  by  the  trustee  and 
knowledge  thereof  on  the  part  of  the  cestui  que  trust.1* 


REMOVAL  OF  TRUSTEE. 

213.  Where  a  trustee  has  been  guilty  of  such  acts 
or  omissions  as  endanger  the  trust  property, 
or  show  a  want  of  honesty,  or  of  proper 
capacity  to  execute  the  duties  of  the  trust, 
a  court  of  equity  will  remove  him,  and  ap- 
point his  successor. 

While  a  trustee  who  accepts  the  office  cannot  relinquish 
it  at  will,  unless  permitted  by  the  trust  instrument,1  and 
the  cestui  que  trust  cannot  at  will  dismiss  him,  a  court  of 
equity  has  inherent  jurisdiction  to  remove  a  trustee,  and 
appoint  another,  whenever  such  step  is  desirable  for  the 
welfare  of  the  beneficiaries  and  the  trust  estate.2  The  power 
of  a  court  of  equity  to  remove  a  trustee,  and  to  substitute 
another  in  his  place,  is  incidental  to  its  paramount  duty  to 
see  that  trusts  are  properly  executed;  and  may  properly 
be  exercised  whenever  such  a  state  of  mutual  ill  feeling 
growing  out  of  the  behavior  of  a  trustee  exists  between 
him  and  his  co-trustee,  or  between  him  and  the  beneficiaries, 

•"  Kilbourn  v.  Sundorland,  130  U.  S.  505,  9  Sup.  Ct.  ".04,  32  L. 
Ed.  1005;  Hammond  v.  Hopkins,  143  U.  S.  224,  11!  Sup.  Ct.  41S.  30 
L.  Ed.  134:  Whitney  v.  Fox,  1(56  U.  S.  037.  17  Sup.  Ct.  7i:;/41  L.  Kd. 
1145;  Mclntire  v.  Pryor,  173  U.  S.  38,  10  Sup.  Ct.  3r.2.  43  L.  Ed.  <JUti; 
Wood  v.  Williams,  14L'  111.  209,  31  X.  E.  GS1;  Jackson  v.  Jackson, 
141)  Ind.  2.",8,  47  X.  E.  003. 

is  lYrry,  Trusts,  §  803.  And  see  Cisborn  v.  Insurance  Co.,  142 
U.  S.  320.  12  Sup.  Ct.  277,  35  L.  Kd.  MM:  Cilmore  v.  Hani.  H2  X. 
Y.  1.  30  X.  E.  S2f,:  McCulre  v.  Ih>vlin,  158  .Mass,  tfj,  .".^  X.  K.  1<>2S; 
Jones  v.  Henderson.  145)  Ind.  45S.  41)  X.  E.  4»M;  Smith  v.  Combs,  4!» 
K  J.  Kq.  420.  L>4  Atl.  0. 

S  213.     i  Clialim-r  v.  Hradley,  1  Jac.  &  W.  08. 

» .Story,  Eq.  Jur.  §  2S7;    Letterstedt  v.  Brocrs,  9  App.  Cas.  371. 


§    2lo)  REMOVAL    OF   TRUSTEE.  443 

that  his  continuance  in  office  would  be  detrimental  to  the 
execution  of  the  trust,  even  if  for  no  other  reason  than 
that  human  infirmity  would  prevent  the  co-trustee  or*  the 
beneficiaries  from  working  in  harmony  with  him,  and  al- 
though charges  of  misconduct  against  him  are  not  made 
out,  or  are  grossly  exaggerated.3  It  does  not  follow  that 
mere  disagreements  between  the  trustee  and  the  benefi- 
ciaries will  justify  a  removal.*  If  a  trustee  fails  in  the 
discharge  of  his  duties  from  an  honest  mistake,  or  a  mis- 
understanding of  them,  or  because  of  a  misjudgment,  he 
should  not  be  removed.5  Nor  will  a  trustee  be  removed 
for  every  violation  of  duty  or  breach  of  trust,  if  the  trust 
property  is  not  endangered.6  But,  where  a  trustee  refuses 
or  neglects  to  invest  the  trust  funds  in  the  manner  directed 
by  the  instrument  creating  the  trust,  it  will  be  sufficient 
ground  for  his  removal;7  and  the  same  is  true  where  He 
loans  money  on  personal  security.8  And  a  trustee  who  has 
permanently  departed  from  the  jurisdiction  of  the  court,9 
or  has  become  insolvent,10  or  deals  with  the  trust  property 
for  his  own  advancement,11  or  suffers  a  co-trustee  to  com- 
mit a  breach  of  trust,12  or  wastes  the  estate  by  unnecessary 
litigation,13  or  refuses  to  convey  property  as  directed  by  a 
valid  decree  of  the  court,1*  will  be  removed. 

«  May  v.  May,  167  U.  S.  310,  320,  17  Sup.  Ct  824,  42  L.  Ed.  179; 
Wilson  v.  Wilson,  145  Mass.  490,  493,  14  N.  E.  521;  In  re  Marsden's 
Estate,  106  Pa.  213,  31  Atl.  46. 

*  Clemens  v.  Caldwell,  7  B.  Mon.  (Ky.)  171;    Gibbes  v.  Smith,  2 
Rich.  Eq.  (S.  C.)  131. 

B  In  re  Durfee,  4  R.  I.  401;  Lathrop  v.  Smalley's  Ex'rs,  23  N.  J. 
Eq.  192. 

e  Waterman  v.  Alden,  144  111.  90,  32  N.  E.  972;  In  re  O'Hara,  62 
Hun,  531,  17  N.  Y.  Supp.  91;  Lathrop  v.  Bauble,  106  Mo.  470,  17 
S.  W.  584.  " 

T  Lathrop  v.  Smalley's  Ex'rs,  23  N.  J.  Eq.  192;  Cavender  v.  Cav- 
ender,  114  U.  S.  464,  5  Sup.  Ct.  955,  29i  L.  Ed.  212. 

*  Johnson's  Appeal,  9  Pa.  416. 

»  O'Reilly  v.  Alderson,  8  Hare,  101;  Dorsey  v.  Thompson,  37  Md. 
25;  Ketchum  v.  Railroad  Co.,  2  Woods,  532,  Fed.  Cas.  No.  7,737. 

10  Bainbrigge  v.  Blair,  1  Beav.  495;    In  re  Barker's  Trusts,  1  Ch 
Div.  43. 

11  Ex  parte  Phelps,  9  Mod.  357;   Kraft  v.  Lohman,  79  Ala.  323; 
Clemens  v.  Caldwell,  7  B.  Mon.  (Ky.)   171;    Lathrop  v.  Smalley's 
Ex'rs,  23  N.  J.  Eq.  192. 

m  Ex  parte  Reynolds,  5  Ves.  707. 

is  in  re  McGillivray,  138  N.  Y.  308,  33  N.  E.  1077. 

»«  Uarrison  v.  Trust  Co.,  144  N.  Y.  326,  39  N.  E.  353. 


444         POWERS,  DUTIES,  AND  LIABILITIES  OF  TRUSTEES.       (Ch.  16 

In  appointing  a  new  trustee,  the  court  will  be  guided 

(1)  by  the  wishes  of  the  creator  of  the  trust,  if  ascertainable ; 

(2)  by  a  due  regard  for  the  interests  of  all  parties  concerned, 
not  favoring  any  particular  class ;  and  (3)  by  the  nature  of 
the  trust,  and  the  question  by  whose  instrumentality  it  can 
best  be  carried  into  execution.11 

is  In  re  Tempest,  1  Ch.  App.  487. 


MORTGAGES. 


445 


CHAPTER  XVIL 

MORTGAGES. 

214.  The  Common-Law  Doctrine  as  to  Real-Estate  Mortgages. 

215.  Equitable  Theory  of  a  Mortgage. 
21&-217.  Definition  of  Mortgage. 

218.  Objects  of  Mortgage. 

219.  Real-Estate  Mortgage— Absolute  Deed  as  Mortgage. 

220.  Conditional  Sale  as  Mortgage. 
221-223.  Mortgage  to  Secure  Future  Advances. 

224.  Assignment  of  Mortgage. 

225.  Conveyance  of  Mortgaged  Premises. 
220.  Foreclosure  of  Mortgage. 

227-228.  Rights  and  Liabilities  of  Mortgagor  and  Mortgagee. 

229.  Redemption. 

230-231.  Mortgages  and  Pledges  of  Personal  Property. 


THE  COMMON-LAW  DOCTRINE  AS  TO  REAL-ESTATE 
MORTGAGES. 

214.  At  common  law  a  mortgage  conveyed  the  en- 
tire legal  estate  to  the  mortgagee,  and,  un- 
less other-wise  provided  in  the  mortgage,  the 
mortgagee  could  eject  the  mortgagor  either 
before  or  after  default  in  payment  of  the 
debt.  ' 

By  the  common-law  mortgage  the  legal  title  of  the  es- 
tate vested  immediately  in  the  mortgagee,  subject  to  be  de- 
feated by  a  ^performance  by  the  mortgagor  of  the  conditions 
of  the  mortgage  and  the  paying  of  the  debt  upon  the  day 
specified.  If  the  condition  was  performed,  and  the  pay- 
ment made,  as  prescribed  in  the  mortgage,  the  legal  title 
became  reinvested  in  the  mortgagor,  with  all  the  rights  of 
ownership.  But,  if  there  was  any  default  in  performance 
or  payment,  the  estate  of  the  mortgagee  became  absolute, 
and  all  the  rights  and  interests  of  the  mortgagor  in  the 
mortgaged  premises  were  lost  beyond  redemption.  Little- 
ton thus  described  the  common-law  mortgage :  "If  a  feoff- 
ment  be  made  upon  such  condition  that,  if  the  feoffor  pay 


446  MORTGAGES.  (Ch.   17 

to  the  feoffee  at  a  certain  day,  etc.,  a  certain  sum  of  money, 
then  the  feoffor  may  re-enter,  in  this  case  the  feoffee  is 
called  the  'tenant  in  mortgage.'  *  *  *  If  the  feoffor 
does  not  pay,  then  the  land  which  is  put  in  pledge  upon 
condition  for  the  payment  of  money  is  taken  from  him 
forever ;  *  *  *  and,  if  he  doth  pay  the  money,  then  the 
pledge  is  dead  as  to  the  tenant."1 

At  the  present  time,  by  the  enactment  of  remedial  stat- 
utes, and  the  development  of  the  jurisdiction  of  the  common- 
law  courts,  the  rights  and  interests  of  mortgagors  are  fully 
recognized  and  protected  at  law,  so  that  "their  former 
precarious  condition  has  become  a  matter  of  history,  rather 
than  one  of  practical  importance."  *  "The  case  of  mort- 
gages," said  Chancellor  Kent,  "is  one  of  the  most  splendid 
instances  in  the  history  of  our  jurisprudence  of  the  triumph 
of  equitable  principles  over  technical  rules,  and  of  the  hom- 
age which  these  principles  have  received  by  their  adoption 
in  courts  of  law."  • 


EQUITABLE  THEORY  OF  A  MORTGAGE. 

215.  In  equity  the  mortgage  is  regarded  primarily 
as  a  security  for  a  debt.  The  debt  is  the 
principal  fact,  and  the  mortgage  is  collateral 
thereto.  The  interest  •which  it  confers  on 
the  mortgagee  is  a  lien  on  the  land,  and  not 
an  estate  in  the  land.1 

As  we  have  seen,  at  common  law  the  mortgagee  was 
clothed  with  the  entire  legal  estate,  and  after  the  default 
of  the  mortgagor  the  estate  of  the  mortgagee  became  ab- 
solute and  indefeasible.  This  harshness  of  the  common 
law  was  softened  by  the  interposition  of  equity  without  ac- 
tual interference  with  common-law  principles.  A  system 
was  eventually  established,  at  once  consistent  with  the  se- 
curity of  the  creditor  and  a  due  regard  for  the  interests  of 

i  214.     i  Co.  Lltt  §  332. 

•  Bisp.  Eq.  §  149. 

»  4  Kent,  Comm.  158. 

I  215.     i  a  Washb.  Real  Prop.  c.  16,  j  4;  Pom.  Eq.  Jur.  }  118L 


§    215)  EQUITABLE    THEORY    OF   A   MORTGAGE.  447 

the  debtor.2  It  does  not  appear  that  the  early  chancellors 
ventured  to  interfere  with  the  common-law  system,  except 
when  the  mortgagor's  default  was  occasioned  by  mistake 
or  the  fraud  of  the  mortgagee.8  But  during  the  reign  of 
James  I.  the  court  of  chancery  took  the  view  that  security 
of  the  debt  was  the  main  object  of  the  transaction,  and 
that,  if  this  were  obtained, — if  repayment  of  principal,  inter- 
est, and  costs  were  offered, — the  mortgagee  should  abandon 
his  hold  on  the  land.  The  origin  of  this  doctrine  is,  doubt- 
less, in  the  civil  law.  In  the  court  of  the  prsetor  at  Rome, 
which  was  in  some  respects  the  equivalent  of  a  modern 
court  of  equity,  it  was  well  established  that,  where  property- 
was  pledged,  the  pledger  might  redeem  it  on  payment  of 
the  debt  for  which  it  was  pledged  at  any  time  before  the 
delivery  of  a  judgment,  giving  the  creditor  the  absolute 
and  indefeasible  estate  in  the  pledged  property.4 

Equity  did  not  attempt  to  alter  the  legal  effect  of  the  for- 
feiture at  common  law.  It  could  not,  in  conformity  with 
the  principles  of  the  civil  law,  declare  that  the  force  of  the 
conveyance  should,  notwithstanding  forfeiture  committed, 
cease  at  any  time  before  a  decree  of  foreclosure  on  pay- 
ment of  the  debt  to  secure  which  it  was  made.  But,  leav- 
ing the  forfeiture  to  its  legal  consequences,  equity  operated 
on  the  conscience  of  the  mortgagee,  and,  acting  in  personam 
and  not  in  rem,  declared  it  unreasonable  that  he  should  re- 
tain as  owner  for  his  own  benefit  what  was  intended  as  a 
mere  pledge,  and  adjudged  that  a  breach  of  the  condition 
was  in  the  nature  of  a  penalty,  which  ought  to  be  relieved 
against,  and  that  the  mortgagor  had  an  "equity  to  redeem" 
on  payment  within  a  reasonable  time  of  principal,  interest, 
and  costs,  notwithstanding  the  forfeiture  at  law.5  This  be- 
came the  established  doctrine  during  the  reign  of  Charles 
I.,6  and  since  that  time  the  mortgagor  has  been  vested  with 
the  right  to  redeem  at  any  time  after  default  on  payment 
of  principal  and  interest,  unless  in  the  meantime  the  mort- 
gagee obtained  from  the  court  of  chancery  a  decree  that 
the  mortgagor  should  be  absolutely  foreclosed.  This  right 

*  Coote,  Mortg.  6. 

» 1  Spenee,  Eq.  Jur.  p.  602. 

«  Underh.  Guide  Mod.  Eq.  p.  118. 

«  Coote,  Mortg.  19,  20. 

•  How  v.  Vigures,  1  Ch.  R.  32.    See,  also,  Toth.  132. 


448  MORTGAGES.  (Ch.  17 

to  redeem  was  known  as  the  "equity  of  redemption,"  and 
was  regarded  as  an  equitable  estate,  which  might  be  con- 
veyed or  devised,  and  which  descended  as  real  estate.7 

No  sooner,  however,  was  the  equity  of  redemption  es- 
tablished than  another  bold  decision  was  required  to  con- 
firm the  utility  of  the  principle.  Creditors,  eager  to  regain 
the  advantage  afforded  them  by  the  common  law,  attempted 
an  evasion  of  the  equitable  doctrine  by  requiring  their  debt- 
ors to  renounce  the  right  of  redemption  by  an  express 
stipulation  in  the  mortgage.  Equity,  however,  acting  on 
the  maxim  that  it  always  looks  at  the  substance  rather  than 
the  form,  frustrated  this  attempt  by  establishing  as  a  prin- 
ciple never  to  be  departed  from  that  "once  a  mortgage  is 
always  a  mortgage";  that  an  estate  could  not  at  one  time 
be  a  mortgage,  and  at  another  time  cease  to  be  so,  by  one 
and  the  same  deed;  and  that,  whatever  clause  or  covenant 
there  might  be  in  a  conveyance,  yet  if,  upon  the  whole,  it 
appeared  to  have  been  the  intention  of  the  parties  that 
such  conveyance  should  only  be  a  mortgage,  or  should 
only  pass  an  estate  redeemable,  equity  would  always  con- 
strue it  so.* 

In  England  the  common-law  and  equitable  methods  of 
treating  the  rights  and  interests  of  mortgagors  and  mort- 
gagees have  grown  up  side  by  side,  without  conflict  or  fric- 
tion. The  equity  courts  did  not  attempt  to  control  the  law 
courts,  or  even  question  the  legal  doctrines  which  they  an- 
nounced. On  the  contrary,  their  force  and  validity  were 
often  recognized  in  the  relief  granted.  Thus  equity  courts, 
in  allowing  a  redemption  after  a  forfeiture  of  the  legal  estate, 
uniformly  required  the  mortgagee  to  reconvey  to  the  mort- 
gagor, which  was,  of  course,  necessary  to  make  his  title 
available  in  a  court  of  law.  In  maintaining  these  two  sys- 
tems and  theories  in  England,  there  was  none  of  that  con- 
fusion and  conflict  which  we  encounter  in  the  decisions  of 
the  courts  of  this  country,  resulting  chiefly  from  a  failure 
to  keep  in  mind  the  distinctions  between  courts  of  law  and 
of  equity,  and  the  rules  and  principles  applicable  to  them 
respectively."  As  an  illustration  of  the  consideration  given 

i  Casborne  v.  Scarfe,  1  Atk.  003.  2  White  &  T.  Lead.  Cas.  Eq.  1945. 

•  Howard  v.  Harris,  1  Veru.  100,  2  White  &  T.  Lead.  Caa.  Eq. 
194J». 

•  Barrett  v.  Hinckley,  124  111.  32,  14  N.  E.  803. 


§  215)       EQUITABLE  THEORY  OF  A  MORTGAGE.         449 

by  courts  of  equity  to  the  legal  rights  and  title  of  the  mort- 
gagee in  the  mortgaged  premises,  it  may  be  observed  that, 
after  default,  equity  would  not  enjoin  the  mortgagee  from 
maintaining  ejectment  against  the  mortgagor  for  the  posses- 
sion of  the  mortgaged  premises,10  and  the  mortgagor  could 
not  make  a  valid  lease  binding  on  the  mortgagee.11  For 
all  other  purposes,  however,  the  mortgagor  was  regarded  as 
the  actual  owner  of  the  estate.18 

Mortgages  in  the  United  States. 

From  the  earlier  cases  in  the  American  states  it  would 
seem  that  the  legal  and  equitable  theories  of  mortgages  were 
both  in  full  force,  and  that  the  two  systems,  each  independ- 
ent of  the  other,  were  transplanted  from  England  into  this 
country,  and  became  a  part  of  our  own  system  of  laws. 
But  statutory  changes  in  the  laws  of  the  several  states,  and 
the  failure  of  the  courts  and  authors  to  note  such  changes, 
and  the  substitution  of  a  single  statutory  form  of  action 
for  the  former  common-law  and  equitable  procedure,  have 
produced  confusion,  and  destroyed  the  certainty  and  uni- 
formity which  formerly  prevailed  with  us,  in  respect  to  the 
rights  of  the  parties  to  a  mortgage.  Under  the  influence 
of  these  statutory  enactments  and  radical  changes  in  legal 
procedure,  by  which  legal  and  equitable  rights  are  enforced 
and  given  effect  in  the  same  suit,  the  equitable  theory  of  a 
mortgage  has,  in  many  of  our  states,  entirely  superseded 
the  legal  one.13 

Perhaps  the  leading  state  among  those  which  have  adopted 
the  equitable  theory  is  New  York.  In  that  state  a  mort- 
gage has  none  of  the  characteristics  of  a  conveyance.  The 
mortgagor  has  every  attribute  and  right  of  an  absolute 
owner  of  the  real  estate,  subject  to  the  lien  of  the  mort- 
gage, and  his  title  can  only  be  defeated  by  foreclosure.14 
The  mortgagee,  before  possession  taken,  has  only  a  chose 
in  action.  He  holds  the  mortgage  only  for  the  security  of 

»o  Cholmondeley  v.  Clinton,  2  Mer.  359. 

»i  Keech  r.  Hall,  Doug.  22. 

12  i  Jones,  Mortg.  §  11. 

is  Barrett  v.  Hinckley,  124  111.  32,  14  N.  E.  863. 

i*  Trustees  of  Union  College  v.  Wheeler,  61  N.  Y.  88;  Shattnck  v. 
Bascom,  105  N.  Y.  40,  12  N.  E.  283;  Triinui  v.  Marsh, '54  N.  Y.  599, 
13  Am.  Rep.  623. 

EATON,E<J.— 29 


450  MORTGAGES.  (Ch.   17 

his  debt.  He  can  sell  his  interest  in  the  land  by  mere  de- 
livery of  the  mortgage,  as  personal  property.  At  his  death 
his  interest  and  the  mortgage  pass  to  his  personal  repre- 
sentatives as  a  portion  of  his  personal  estate.  He  has  no 
such  estate  in  the  land  as  can  be  sold  on  execution,  or  as 
can  give  his  widow  dower,  and  he  has  no  attribute  of  owner- 
ship in  the  land.16  The  mortgage  does  not  vest  the  mort- 
gagee with  any  title  to  the  land,  nor  has  he  a  right  to  take 
possession,  or  maintain  an  action  in  ejectment  against  the 
owner  of  the  equity  of  redemption,19  even  after  default. 
His  only  right  on  default  is  to  bring  proceedings  for  the 
sale  of  the  land,  and  thus  obtain  a  satisfaction  of  the  mort- 
gage out  of  the  proceeds,  accounting  to  the  mortgagor  for 
the  surplus.  The  equitable  rule  has  also  been  adopted  in 
California,17  Colorado,18  Florida,19  Georgia,20  Indiana,21 
Iowa,22  Kansas,28  Kentucky,2*  Louisiana,26  Michigan,2* 
Minnesota,27  Montana,28  Nebraska,29  Nevada,10  New  Mex- 
ico,81 North  and  South  Dakota,82  Oregon,"  South  Caro- 


»B  Trimm  v.  Marsh,  54  N.  Y.  599,  13  Am.  Rep.  623. 

i«  Murray  v.  Walker,  31  N.  Y.  399. 

"  McMillan  v.  Richards,  9  Cal.  365,  70  Am.  Dec.  655;  Button  v. 
Warschauer,  21  CaL  609,  82  Am.  Dec.  765. 

is  Drake  v.  Root,  2  Colo.  685. 

.is  McMahon  v.  Russell,  17  Fla.  698;  Jordan  v.  Sayre,  29  Fla.  100, 
10  South.  823, 

*o  Vason  v.  Ball,  56  Ga.  268;    Carter  v.  Gunn,  64  Ga,  651. 

*i  Fletcher  v.  Holmes,  32  Ind.  497,  515. 

•  2  White  v.  Rittenmyer,  30  Iowa,  268. 
»s  Chick  v.  Willetts,  2  Kan.  384. 

««  Woolley  v.  Holt,  14  Bush  (Ky.)  788;  Taliaferro  Y.  Gay,  78  Ky. 
496. 

"  Duclaud  v.  Rousseau,  2  La.  Ann.  168. 

2«  Caruthers  v.  Humphrey,  12  Mich.  270;  Lee  v.  Clary,  38  Mich. 
223. 

*T  Adamg  v.  Corriston,  7  Minn,  456  (Gil.  365). 

*a  Fee  v.  Swingly,  6  Mont  596,  13  Pac.  375. 

2»  Kyger  v.  Ryley,  2  Neb.  20,  28;  McHugh  v.  Smiley,  17  Neb.  620, 
20  N.  W.  296. 

so  Gen.  St  1885,  §  3284;  First  Nat  Bank  v.  Kreig  (Nev.)  32  Pac. 
641. 

«i  Comp.  Laws  1884,  §  1595. 

»»  Rev.  Codes  1883,  §  1733. 

•  •  Thompson  v.  Marshall,  21  Or.  171,  27  Pac,  957;  Adair  v.  Adair, 
22  Or.  115,  29  Pac.  193. 


§   215)  EQUITABLE   THEORY    OF   A    MORTGAGE.  451 

lina,84  Texas,85  Utah,84  Washington,87  and  Wisconsin.*8  In 
the  other  states  the  dual  English  system  prevails,  with  vary- 
ing modifications.  It  may,  however,  be  stated  as  a  geTi- 
eral  proposition  that  in  these  states  a  mortgage  is  regarded 
as  a  conveyance  of  the  legal  title,  entitling  the  mortgagee 
to  possession  always  after  default,  and  sometimes  even  be- 
fore; while  the  mortgagor  has  only  the  equity  of  redemp- 
tion. This  system  prevails  in  Alabama,39  Arkansas,40  Con- 
necticut,41 Delaware,42  Illinois,43  Maine,44  Maryland,46  Mas- 
sachusetts,46 Mississippi,47  Missouri,48  New  Hampshire,48 
New  Jersey,50  North  Carolina,51  Ohio,52  Pennsylvania,58 

•4  Navassa  Guano  Co.  v.  Richardson,  26  S.  C.  401,  2  S.  E.  307; 
Hardin  v.  Hardin,  34  S.  C.  77,  12  S.  B.  936. 

SB  Wright  v.  Henderson,  12  Tex.  43. 

86  Comp.  Laws  1876,  p.  478. 

«T  Code  Wash.  1881.  §  546. 

««  Wood  v.  Trask,  7  Wis.  566,  76  Am.  Dec.  230;  Wisconsin  Cent 
E.  Co.  v.  Land  Co.,  71  Wis.  94,  36  N.  W.  837. 

as  Knox  v.  Easton,  38  Ala,  345;    Downing  v.  Blair,  75  Ala.  216. 

40  Kannady  v.  McCarron,  18  Ark.  166;    Fitzgerald  v.  Beebe,  7  Ark. 
310,  46  Am.  Dec.  285. 

41  Chamberlain  v.  Thompson,  10  Conn.  243,  251,  26  Am.  Dec.  390. 

42  Hail  v.  Tunnell,  1  Houst  (Del.)  320;    Cornog  v.  Cornog,  3  Del. 
Ch.  407,  416.     In  Delaware  the  English  system  is  greatly  modified, 
and  approximates  very  nearly  to  that  in  force  in  the  first  class  of 
states. 

43  Carroll  v.  Ballance,  26  IlL  9,  79  Am.  Dec.  354;  Barrett  v.  Hinck- 
ley,  124  111.  32,  14  N.  E.  863. 

44  Blaney  v.  Bearce,  2  Greenl.  (Me.)  132. 

45  Brown  v.  Stewart  1  Md.  Ch.  87;  Annapolis  &  K  R.  Co.  v.  Gantt, 
39  Md.  115. 

46  Ewer  v.  Hobbs,  5  Mete.  (Mass.)  1-3;    Howard  v.  Robinson,  5 
Cush.  (Mass.)  119,  123. 

47  Carpenter  v.  Bo  wen,  42  Miss.  28;    Buckley  v.  Daley,  45  Miss. 
338,  5G5.     Here,  too,  the  English  system  is  greatly  modified. 

48  Johnson  v.  Houston,  47  Mo.  227;    Bailey  v.  Winn,  101  Mo.  649, 
12  S.  W.  1045. 

49  Brown  v.  Cram,  1  N.  H.  169;   Hobart  v.  Sanborn,  13  N.  H.  226, 
38  Am.  Dec.  483;    Great  Falls  Co.  v.  Worster,  15  N.  H.  412,  444. 

so  Sanderson  v.  Price,  21  N.  J.  Law,  637,  646;  Shields  v.  Lozear, 
84  N.  J.  Law,  496,  3  Am.  St.  Rep.  256;  Verner  v.  Beta,  46  N.  J.  Eq. 
256,  19  Atl.  206,  7  L.  R.  A.  630,  19  Am.  St  Rep.  387. 

ex  Hemphill  v.  Ross,  66  N.  C.  477. 

»2  Allen  v.  Everly,  24  Ohio  St  97,  114. 

•*  Tryon  v.  Munsoii,  77  Pa.  250. 


452  MORTGAGES.  (Ch.    17 

Rhode  Island,84  Tennessee,"  Vermont,"  Virginia  and  West 
Virginia.61 

DEFINITION  OP  MORTGAGE. 

216.  A  mortgage  is  a  contract  by  -which  specific 

property  is  hypothecated  for  the  perform- 
ance of  an  act,  -without  the  necessity  of  a 
change  of  possession.1 

217.  As  viewed  by  a  court  of  equity,  a  real-estate 

mortgage  is  a  lien  or  charge  on  land  to  se- 
cure the  payment  of  a  debt.2 

An  accurate  and  concise  definition  of  a  mortgage,  which 
will  embrace  both  its  equitable  and  legal  character,  is  diffi- 
cult to  formulate.  The  one  given  in  the  first  paragraph  of 
the  black-letter  text  is  that  contained  in  the  Civil  Code  of 
California,  and  has  been  approved  and  cited  by  a  number 
of  writers.8  Mr.  Coote  has  flefined  a  mortgage  as  a  "debt 
by  specialty,  secured  by  pledge  of  lands,  of  which  the  legal 
ownership  is  vested  in  the  creditor,  but  of  which,  in  equity, 
the  debtor  and  those  claiming  under  him  remain  the  actual 
owners,  until  debarred  by  judicial  sentence,  by  legislative 
enactment,  or  their  own  laches."  *  And  Mr.  Pomeroy  has 
said,  in  criticising  many  of  the  definitions  set  forth  by  judges 
and  writers,  that:  "Any  true  definition  based  upon  the 
original  common-law  and  equitable  system  must  embody 
and  express  all  the  double  nature  of  the  mortgage ;  that  is, 
both  as  a  lien  in  equity  and  a  conveyance  at  law."  * 

««  Carpenter  v.  Carpenter,  6  R.  I.  542;  Waterman  v.  Matteson, 
4  R.  I.  539. 

OB  Henshaw  v.  Wells,  9  Humph.  (Term.)  568;  Vance's  Heirs  v. 
Johnson,  10  Humph.  (Tenn.)  214. 

o«  Hagar  v.  Brainerd,  44  Vt.  294;  Brunswick-Balke-Collender  Co. 
T.  Herrick,  63  Vt  286,  21  Atl.  918. 

"  2  Minor,  Inst  500-530.  Trust  deeds  which  vest  the  legal  title 
In  the  trustee  are  extensively  used  In  Virginia  and  West  Virginia. 

§§  210.  217.  i  Civ.  Code  Cal.  §  2920;  Proposed  Field's  Civ.  Code 
N.  Y.  §  1608. 

a  Seton  v.  Slade,  7  Ves.  265,  273. 

«  Pom.  Eq.  Jur.  $  1191.  note;   Hill,  Real  Prop.  $  294. 

«  Coote,  Mortg.  139. 

•  Pom.  Eq.  Jur.  $  H9L 


§    219)  REAL-ESTATE    MORTGAGE.  453 

OBJECTS  OF  MORTGAGE. 

218.  The  object  of  a  mortgage  may  be  the  payment 

of  a  debt,  the  protection  of  a  surety,  or  the 
performance  of  any  other  act.1 

The  first  great  object  of  a  mortgage  of  real  estate  is,  in 
the  form  of  a  conveyance  in  fee,  to  give  the  mortgagee  an 
effectual  security,  by  the  pledge  or  hypothecation  of  real 
estate,  for  the  payment  of  a  debt,  or  the  performance  of 
some  other  obligation.  The  next  is  to  leave  to  the  mort- 
gagor, and  to  purchasers,  creditors,  and  all  others  claim- 
ing derivatively  through  him,  the  full  and  entire  control, 
disposition,  and  ownership  of  the  estate,  subject  only  to  the 
first  purpose, — that  of  securing  the  mortgagee.2  Mortgages 
may  be  made  conditioned  upon  the  support  of  the  mort- 
gagee or  other  persons,  as  well  as  for  the  payment  of  money. 
In  such  mortgages  the  obligation  to  support  is  a  personal 
one,  and  prevents  the  alienation  of  the  mortgaged  premises, 
or  their  sale  under  execution,  unless,  by  the  terms  of  the 
instrument,  the  obligation  is  imposed  upon  all  claiming 
under  the  mortgagor.8 

REAL-ESTATE     MORTGAGE— ABSOLUTE    DEED    AS 
MORTGAGE. 

219.  A  deed  absolute  in  form  -will,  in   equity,   be 

treated  as  a  mortgage,  if  it  was  executed 
to  secure  the  payment  of  a  loan  or  debt. 
Any  evidence,  written  or  parol,  tending  to 
show  that  a  deed  absolute  in  form  was  in- 
tended as  a  mortgage,  is  admissible.1 

§  218.  i  2  Washb.  Real  Prop.  (4th  Ed.)  475;  Tied.  Real  Prop.  §  310; 
Rice,  Mod.  Law  Real  Prop.  §  295;  Lanfair  v.  Lanfair,  18  Pick. 
(Mass.)  304;  Mitchell  v.  Burnham,  44  Me.  299. 

2  Chief  Justice  Shaw  in  Ewer  v.  Hobbs,  5  Mete.  (Mass.)  1. 

»  Bryant  v.  Erskine,  55  Me.  156;  Bethlehem  v.  Annis,  40  N.  H.  34, 
77  Am.  Dec.  700;  Daniels  v.  Eisenlord,  10  Mich.  455;  Soper  v. 
Guernsey,  71  Pa.  224.  These  mortgages  are  not  often  found  in 
actual  practice,  and  are  more  prevalent  in  the  New  England  states 
than  elsewhere. 

§  219.     i  Peugh  v.  Davis,  96  U.  S.  332,  336,  24  L.  Ed.  775. 


454  MORTGAGES.  (Ch.   17 

The  presumption,  of  course,  is  that  a  deed  is  what  it  pur- 
ports to  be  on  its  face ;  but  equity  regards  substance,  and 
not  form ;  and  if  it  appears  that  the  parties  intended  the 
deed  to  stand  as  security  for  a  loan,  effect  will  be  given  to 
such  intention  by  treating  the  deed  as  in  all  respects  a  mort- 
gage. This  principle  is  well  established  in  most  of  the 
states,  and  is  supported  by  a  multitude  of  cases.2  In  some 
of  the  earlier  decisions  the  ground  of  this  doctrine  was  said 
to  be  that  of  fraud,  accident,  or  mistake,  and  where  neither 
of  these  elements  existed  the  deed  was  not  treated 'as  a 
mortgage.8  This  still  seems  to  be  the  prevailing  theory  in 
the  states  of  Alabama,  Connecticut,  Florida,  Kentucky, 
Maryland,  North  Carolina,  Rhode  Island,  and  South  Caro- 
lina.4 But  in  the  United  States  supreme  court,  and  in 
most  of  the  other  states,  the  existence  of  the  rule  is  based 
on  the  intention  of  the  parties;  and  it  has  been  held  that, 
where  it  is  shown  that  a  deed  is  intended  to  operate  as  a 
mortgage,  it  would  be  a  fraud  upon  the  grantor  if  the  gran- 
tee should  insist  that  the  deed  conveyed  an  absolute  title.6 

Admwsibility  of  Parol  Evidence. 

Parol  or  any  other  evidence  is  admissible  to  show  that  a 
deed  absolute  on  its  face  was  intended  as  a  mortgage.  Such 

«  Among  the  many  cases  upholding  this  doctrine  are  the  follow- 
ing: Peugh  v.  Davis,  90  U.  S.  332,  336,  24  L.  Ed.  775;  Ensigu  v. 
Ensign,  120  N.  Y.  655,  24  N.  E.  942;  Helm  v.  Boyd,  124  111.  370,  16 
N.  E.  85;  Cullen  v.  Carey,  146  Mass.  50,  15  N.  E.  131;  Harper's 
Appeal,  64  Pa.  315;  Turpie  v.  Lowe,  114  Ind.  37,  15  N.  E.  834;  Mc- 
Millan v.  Bissell,  63  Mich.  66,  29  N.  W.  737;  Madigan  v.  Mead,  31 
Minn.  94.  16  N.  W.  539;  McMillan  v.  Jewett,  85  Ala.  476,  5  South. 
145;  Cake  v.  Shull,  45  N.  J.  Eq.  208,  16  Atl.  434;  Becker  v.  How- 
ard, 75  Wis.  415,  44  N.  W.  755;  Teal  v.  Walker,  111  U.  S.  242,  4  Sup. 
Ct.  420,  28  L.  Ed.  415;  Pearce  v.  Wilson,  111  Pa.  14,  2  Atl.  99; 
Ross  v.  Brusie,  70  Cal.  465,  11  Pac.  760. 

«  Stevens  v.  Cooper,  1  Johns.  Ch.  (N.  Y.)  425,  7  Am.  Dec.  499. 

*  Bragg  v.  Massie's  Adm'r,  38  Ala.  89,  106,  79  Am.  Dec.  82;    French 
v.  Burns,  35  Conn.  359;    Lindsay  v.  Matthews,  17  Fla.  575;    Stapp  v. 
Phelps,  7  Dana  (Ky.)  296;    Price  v.  Gover,  40  Md.  102;    Green  v. 
Sherrod,  105  N.  C.  197,  10  S.  E.  986;    Nichols  v.  Reynolds.  1  R.  I. 
80,  36  Am.  Dec.  238;    Nesbltt  v.  Cavender,  27  S.  C.  1,  2  S.  E.  702. 

•  Babcock   v.  Wyman,   19  How.  289,  15  L.  Ed.  644;    Russell  v. 
Southard,  12  How.  139,  13  L.  Ed,  927;    Brick  v.  Brick,  98  U.  S.  514, 
25  L.  Ed.  256;    Ruckman  v.  Alwood,  71  111.  155;    Campbell  v.  Dear- 
born. 109  Mass.  130,  12  Am.  Rep.  671;    Vllet  v.  Young,  34  N.  J.  Eq. 
16;   Carr  v.  Carr,  52  N.  Y.  251;   Horn  v.  Keteltas,  46  N.  Y.  606. 


§    219)  REAL-ESTATE    MORTGAGE.  455 

evidence  is  not  admitted  to  affect  the  validity  of  the  in- 
strument, but  to  determine  its  character.  It  will  be  equally 
valid  and  binding  whether  it  be  deemed  a  mortgage  or  an 
absolute  deed.  It  cannot  be  said,  therefore,  that  the  ad- 
mission of  such  evidence  is  in  conflict  with  the  rule  pro- 
hibiting the  variance  of  the  express  terms  of  a  deed  or 
other  instrument  by  parol  evidence.6  Nor  does  the  ad- 
mission of  parol  evidence  for  such  purpose  violate  the  stat- 
ute of  frauds,  which  can  never  be  made  a  cover  for  fraud.7 
But,  in  order  to  rebut  the  presumption  in  favor  of  the  deed 
being  what  it  purports  to  be  on  its  face,  the  proof  adduced 
must  be  clear,  unequivocal,  and  convincing.8  The  burden 
of  proof  rests  upon  him  who  alleges  that  the  deed  was  in- 
tended as  a  mortgage.  As  was  said  in  a  New  York  case, 
the  burden  of  establishing  a  penal  defeasance  to  a  deed 
absolute  in  form  "is  an  onerous  one,  resting  on  whoever 
alleges  it,  and  its  existence,  and  also  its  precise  terms,  must 
be  established  by  clear  and  convincing  evidence;  otherwise, 
the  strong  presumption  that  the  deed  expresses  the  entire 
contract  is  not  overcome.  A  conveyance  of  land  in  fee  so 
executed,  acknowledged,  and  recorded  is  of  too  great  so- 
lemnity, and  of  too  much  importance,  to  be  set  aside  or  con- 
verted into  a  mere  security  upon  loose  or  uncertain  testi- 
mony, and  it  will  not  be  unless  the  existence  of  the  alleged 
oral  defeasance  is  established  beyond  a  reasonable  doubt."  9 

«  In  Peugh  v.  Davis,  96  U.  S.  332,  336,  24  L.  Ed.  775,  776,  Justice 
Field  says:  "The  rule  which  excludes  parol  testimony  to  contra- 
dict or  vary  a  written  instrument  has  reference  to  the  language 
used  by  the  parties.  That  cannot  be  qualified  or  carried  from  its 
natural  import,  but  must  speak  for  itself.  The  rule  does  not  forbid 
an  inquiry  into  the  objects  of  the  parties  in  executing  and  receiving 
the  instrument.  Thus  it  may  be  shown  that  a  deed  was  made  to 
defraud  creditors,  or  to  give  a  preference,  or  to  secure  a  loan,  or  for 
any  other  object  not  apparent  on  its  face.  The  object  of  the  parties 
in  such  cases  will  be  considered  by  a  court  of  equity.  It  constitutes 
a  ground  for  the  exercise  of  its  jurisdiction,  which  will  always  be 
asserted  to  prevent  fraud  or  oppression,  and  to  promote  justice." 
See,  also,  Carr  v.  Carr,  52  N.  Y.  251,  260;  Campbell  v.  Dearborn,  109 
Mass.  130;  Stinchfield  v.  Milliken,  71  Me.  567. 

i  Carr  v.  Carr,  52  N.  Y.  251,  2GO;  Klein  v.  McNamara,  54  Miss.  90; 
Sewell  v.  Price's  Adm'r,  32  Ala,  97. 

s  Cadman  v.  Peter,  118  U.  S.  73,  80,  6  Sup.  Ct.  957,  30  L.  Ed.  78; 
Wallace  v.  Johnstone,  129  U.  S.  58,  64,  9  Sup.  Ct.  243,  32  L.  Ed.  619; 
Helnfv.  Boyd,  124  111.  370,  16  N.  E.  85;  McMillan  v.  Bissell,  63  Mich. 
66,  29  N.  W.  737. 

•  Ensign  v.  Ensign,  120  N.  Y.  656,  24  N.  E.  942. 


456  MORTGAGES.  (Ch.   17 


SAME— CONDITIONAL  SALE  AS  MORTGAGE. 

220.  A  sale  of  land,  -with,  an  option  reserved  to  the 
vendor  to  repurchase  -within  a  specified 
time,  will  in  equity  be  treated  as  a  mort- 
gage, if  the  conveyance  was  intended  by 
the  parties  to  stand  as  security  for  a  debt. 

Where  land  is  sold  with  an  option  reserved  to  the  vendor 
to  repurchase  by  .the  payment  of  a  certain  sum  within  a 
specified  time,  the  sale  is  known  as  a  conditional  sale,  and 
will  become  absolute  upon  a  failure  to  pay  the  stipulated 
sum  at  the  time  specified.  The  vendor  in  such  a  trans- 
action is  not  entitled  to  an  equity  of  redemption,  but  can 
only  enforce  the  agreement  to  resell  if  the  payment  is  made 
as  required.1  A  conditional  sale  may,  in  equity,  be  shown 
to  be  a  mortgage  upon  the  same  principles  as  in  the  case 
of  a  deed  absolute  on  its  face.  If  it  appears  that  the  par- 
ties intended  the  conditional  sale  to  operate  as  a  security 
for  a  debt,  equity  will  treat  the  transaction  in  all  respects 
as  a  mortgage.2  The  intention  of  the  parties,  as  ascertained 
by  considering  their  situation  and  the  surrounding  facts,  as 
well  as  the  written  memorials  of  the  transaction,  furnishes 
the  criterion  for  the  distinction.8  Chancellor  Kent  states 
the  test  of  distinction  as  follows :  "If  the  relation  of  debtor 
and  creditor  remains,  and  a  debt  still  subsists,  it  is  a  mort- 
gage; but,  if  the  debt  be  extinguished  by  the  agreement 
of  the  parties,  or  the  money  advanced  is  not  by  way  of 
loan,  and  the  grantor  has  the  privilege  of  refunding,  if  he 
pleases,  by  a  given  time,  and  thereby  entitles  himself  to  a 
recognizance,  it  is  a  conditional  sale."  *  In  cases  of  doubt, 

§  220.  i  Alderson  v.  White,  2  De  Gex  &  J.  07;  Turner  v.  Wilkin- 
son, 72  Ala.  361. 

a  Schriber  v.  Leclalr,  66  Wis.  570,  20  N.  W.  570,  889;  Jackson  v. 
Lynch,  129  111.  72,  21  N.  E.  580,  22  N.  E.  246;  Lipp  v.  Land  Syndi- 
cate, 24  Neb.  692,  40  N.  W.  120;  White  v.  Megill  (N.  J.  Ch.)  18  Atl. 
855;  Buse  v.  Page,  32  Minn.  Ill,  19  N.  W.  736,  20  N.  W.  95. 

«  Cornell  v.  Hall,  22  Mich.  377,  383;  Smith  v.  Crosby,  47  Wis.  100, 
2  N.  W.  104;  Henley  v.  Hotaling,  41  Cal.  22. 

«  4  Kent  Comm.  p.  145.  See,  also,  Kraemer  v.  Adelsberger,  122 
N.  Y.  467,  25  N.  E.  859;  Adams  v.  Pilcher,  92  Ala.  474,  8  South.  757; 
Henley  v.  Hotaling,  41  Cal.  22,  28. 


§§    221-223)  'REAL-ESTATE   MORTGAGE.  457 

courts  will  construe  the  transaction  as  a  mortgage,  because 
the  vendor  recovers  his  debt  with  legal  interest,  and  the 
danger  of  oppression  resulting  from  the  inability  of  the 
vendor  to  repurchase  within  the  time  limited  is  obviated.5 


SAME— MORTGAGE  TO  SECURE  FUTURE  ADVANCES. 

221.  A  mortgage    to   secure    future    advances   is   a 

valid  contract,  whether  given  in  addition  to 
or  without  a  present  indebtedness. 

222.  Independent    of    the    recording    acts,    such    a 

mortgage  is  a  prior  lien  against  subsequent 
purchasers  and  incumbrancers  for  all  ad- 
vances made  -without  notice  of  such  sub- 
sequent conveyances  or  incumbrances. 

223.  If  the  prior  mortgage  is  recorded,  it  has  a  pref- 

erence over  subsequent  recorded  mortgages 
and  conveyances  and  subsequent  docketed 
judgments  for  all  advances  which,  by  the 
terms  of  the  mortgage,  are  to  be  secured 
thereby,  made  not  only  before,  but  after, 
their  recording  or  docketing,  -without  actual 
notice  thereof. 

It  has  been  settled  in  this  country  by  a  long  line  of  de- 
cisions that  a  mortgage  may  be  given  to  secure  future  ad- 
vances ;  to  secure  debts  to  be  contracted  as  well  as  those 
already  due.1  As  has  been  said:  "There  is  no  question 
as  to  the  validity  of  mortgages  to  secure  future  advances 
or  liabilities.  They  have  become  a  recognized  form  of  se- 
curity. Their  frequent  use  has  grown  out  of  the  necessities 

e  Rapier  v.  Paper  Co.,  77  Ala.  126,  134;  Roddy  v.  Brick,  42  N.  J. 
Eq.  218,  6  Atl.  806;  Niggeler  v.  Maurin,  34  Minn.  119,  24  N.  W.  369. 

§§  221-223.  i  Shirras  v.  Caig,  7  Cranch,  34,  3  L.  Ed.  260;  Jones 
T.  Indemnity  Co.,  101  U.  S.  622,  626,  25  L.  Ed.  1030;  Ferris  v.  Spoon- 
er,  102  N.  Y.  10,  5  N.  E.  773;  Robinson  v.  Williams,  22  N.  Y.  380; 
Huckaba  v.  Abbott,  87  Ala.  409,  6  South.  48;  Newkirk  v.  Newkirk, 
56  Mich.  525,  23  N.  W.  206;  Philadelphia,  W.  &  B.  R.  Co.  v.  Woelp- 
per,  64  Pa.  366,  3  Am.  Rep.  596. 


458  MORTGAGES.  (Ch.   17 

of  trade  and  their  convenience  in  the  transaction  of  busi- 
ness. They  enable  parties  to  provide  for  continuous  deal- 
ings, the  nature  or  extent  of  which  may  not  be  known  or 
anticipated  at  the  time,  and  they  avoid  the  expense  and  in- 
convenience of  executing  a  new  security  for  each  transac- 
tion. It  is  well  known  that  such  mortgages  are  constantly 
taken  by  banks  and  bankers  as  security  for  final  balances, 
and  banking  facilities  are  extended,  and  daily  credits  given, 
in  reliance  upon  them.  Mortgages  for  future  advances  have 
sometimes  been  regarded  with  jealousy,  but  their  validity 
is  now  fully  recognized  and  established."  2 

There  can  be  no  question  that  such  a  mortgage  is  a  prior 
lien  against  subsequent  incumbrancers  and  purchasers  for 
all  advances  made  before  the  execution  of  the  subsequent 
conveyances  or  mortgages,  or  the  docketing  of  the  subse- 
quent judgments  against  him.3  But,  if  such  advances  were 
made  after  such  execution  or  docketing,  the  question  fre- 
quently arises  as  to  the  priority  of  a  mortgage  to  secure 
such  advances  over  the  subsequent  conveyance,  mortgage, 
or  judgment.  This  question  is  not  without  its  difficulties,- 
and  there  seems  to  be  more  or  less  conflict  of  authority 
as  to  its  proper  disposition.  But  it  seems  well  established 
that,  if  such  advances  were  made  with  notice  of  the  subse- 
quent incumbrance  or  conveyance,  the  mortgagee  under  the 
prior  mortgage  secures  no  preference,  but  his  claim  for 
such  advances  will  be  postponed  to  that  of  the  subsequent 
purchaser  or  incumbrancer.*  Such  notice,  to  deprive  the 
mortgagee  of  the  priority  of  his  lien,  must  be  actual  notice, 
and  the  constructive  notice  afforded  by  recording  or  docket- 
ing the  subsequent  mortgage,  conveyance,  or  judgment  is 
not  sufficient.8 

A  mortgage  for  future  advances,  which  has  been  duly  re- 
corded, has  preference,  therefore,  over  all  subsequent  mort- 

*  Ackerman  v.  Hunsicker,  85  N.  Y.  43,  47,  39  Am.  Rep.  G21,  622,  per 
Andrews,  J. 

«  Porn.  Eq.  Jur.  §  1198. 

*  Shin-as  v.  Calg,  7  Cranch,  34,  3  L.  Ed.  260. 

*  Ackerman  v.  Hunsicker,  80  N.  Y.  43,  39  Am.  Rep.  621;  Tapia  v. 
Demartini,  77  Cal.  383,  19  Pac.  641,  11  Am.  St.  Rep.  288;    Lovelace 
v.  Webb,  62  Ala.  271.     The  opposite  rule  is  adopted  in  some  states. 
See  Ladue  v.  Railroad  Co.,  13  Mich.  380,  87  Am.  Dec.  759;    Spader 
Y.  Luwler,  17  Ohio,  371,  49  Am.  Dec.  461;    Bank  of  Montgomery 
Co.'s  Appeal,  36  Pa.  170. 


§    224)  REAL-ESTATE    MORTGAGE.  459 

gages,  conveyances,  or  judgments,  unless  actual  notice  has 
been  given  the  mortgagee  of  the  existence  thereof.  The 
law  requires  mortgages  to  be  recorded  for  the  protection 
of  creditors  and  purchasers.  When  recorded,  a  mortgage 
is  notice  of  its  contents.  If  it  gives  information  that  it  is 
to  stand  as  security  for  all  future  indebtedness  to  accrue 
from  the  mortgagor  to  the  mortgagee,  a  person  examining 
the  record  is  put  upon  inquiry  as  to  pending  transactions 
between  the  parties,  and  the  amount  of  the  indebtedness 
covered  by  the  mortgage,  and  is  duly  advised  of  the  right 
of  the  mortgagee  to  hold  the  mortgaged  property  as  se- 
curity to  him  for  such  indebtedness  as  may  accrue  to  him.6 
The  party  taking  the  subsequent  security  may  protect  him- 
self by  notice ;  and,  as  it  is  said  by  Mr.  Jarman  in  his  notes 
to  Bythewood's  Conveyancing,  "no  person  ought  to  accept 
a  security  subject  to  a  mortgage  authorizing  future  advances 
without  treating  it  as  an  actual  advancement  to  that  ex- 
tent." * 

SAME— ASSIGNMENT  OF  MORTGAGE. 

224.  As  viewed  by  a  court  of  equity,  the  debt  is 
the  principal  thing,  and  the  mortgage  an 
accessory,  and  therefore  an  assignment  of 
the  debt  carries  with  it  the  mortgage.1 

In  those  states  where  the  legal  title  to  land  vests  in  the 
mortgagee,  a  deed  executed  with  due  formality  is,  of  course, 
essential  to  vest  the  legal  title  in  his  assignee.2  In  equity, 
however,  an  assignment  of  the  debt  is  regarded  as  an  as- 
signment of  the  mortgage,  giving  the  assignee  a  right  to 
enforce  the  same.8  It  is,  of  course,  desirable  that  a  formal 

•  Witczinski  v.  Everman,  51  Miss.  841. 

»  Ackerrnan  v\  Hunsicker,  85  N.  Y.  43,  52. 

§  224.     i  Carpenter  v.  Longan,  16  Wall.  271,  275,  21  L.  Ed.  313. 

2  Sanders  v.  Cassady,  86  Ala.  246,  248,  5  South.  503;  Smith  v. 
Kelley,  27  Me.  237,  36  Am.  Dec.  595;  Adams  v.  Parker,  12  Gray 
(Mass.)  53. 

8  In  states  where  a  mortgage  is  merely  n  chattel  interest,  such 
assignment  is  treated  as  a  legal  assignment.  Sangster  v.  Love,  11 
Iowa,  580;  Runyan  v.  Mersereau  11  Johns.  (N.  Y.)  534,  6  Am.  Dec. 
393;  Reever-  r.  Hayes,  95  Ind.  521.  In  the  other  states  such  assign- 
ment is  treated  as  aa  equitable  assignment  Keyes  v.  Wood,  21 


460  MORTGAGES.  (Ch.   17 

written  assignment  of  the  debt  and  mortgage  be  executed, 
but  this  is  not  necessary  to  the  validity  of  the  assignment. 
Some  difficult  questions  have  arisen  where  the  mortgage 
debt  is  evidenced  by  several  notes,  and  these  notes  have 
been  assigned  to  different  persons.  If  the  notes  mature  at 
different  times,  some  of  the  courts  hold  that  the  respective 
assignees  will  be  entitled  to  priority  according  to  the  order 
of  time  in  which  these  notes  mature,4  though  in  some  of  the 
states  it  is  held  that  all  the  assignees  stand  on  an  equality, 
and  must  share  the  proceeds  of  the  mortgaged  premises 
pro  rata.6 

SAME— CONVEYANCE  OP  MORTGAGED  PREMISES. 

225.  Where  mortgaged  premises  are  conveyed  sub- 
ject to  the  mortgage,  the  land  continues  the 
primary  fund  for  the  payment  of  the  debt; 
but  the  grantee  does  not  become  personally 
liable  for  the  payment  of  the  debt  secured 
by  the  mortgage,  unless  he  assumes  such 
payment. 

A  mortgagor  may  convey  the  whole  or  any  part  of  the 
mortgaged  premises.  If  the  grantee  has  actual  notice,  or 
constructive  notice  by  record  or  otherwise,  of  the  incum- 
brance,  he  takes  subject  to  that  incumbrance.  When  the 
deed  is  silent  with  respect  to  the  mortgage,  and  the  mort- 
gage debt  is  not  a  part  of  the  purchase  price,  the  grantor 
remains  the  principal  debtor,  and  the  land  is  simply  security. 

Vt  331;  Mayo  v.  Merrlck,  127  Mass.  511;  Jordan  v.  Cheney,  74  Me. 
859. 

«  Leavitt  r.  Reynolds,  79  Iowa,  348,  44  N.  W.  567,  7  L.  R.  A.  365; 
Lyraan  v.  Smith,  21  Wis.  674;  Winters  T.  Bank,  33  Ohio  St  250; 
Doss  v.  Ditmars.  70  Ind.  451;  Herrington  v.  McCollum,  73  III.  476; 
Mitchell  T.  Ladew,  36  Mo.  526,  88  Am.  Dec.  156.  In  Granger  v. 
Crouch,  86  N.  ¥.  494,  499,  It  was  held  that  the  Intention  of  the  par- 
ties is  controlling  on  the  question  of  priority. 

»  Lovell  v.  Cragin,  136  U.  «  147,  10  Sup.  Ct  1024,  34  L.  Ed.  372; 
Fourth  Nat  Bank's  Appeal,  123  Pa.  484,  16  Atl.  779,  10  Am.  St  Rep. 
638;  Penzel  v.  Brookmire,  51  Ark.  105,  10  P  W.  15,  14  Am.  St  Rep. 
23;  Wilson  v.  Eigenbrodt  30  Minn.  4.  13  .N  W.  907;  Jennings  r. 
Moore,  83  Mich.  231,  47  N.  W.  127,  21  Am.  St  Rep.  601. 


§    225)  BEAL-ESTATE    MORTGAGE.  461 

The  primary  liability  of  the  mortgagor  to  pay  the  debt  can- 
not be  shifted  to  the  land,  save  by  a  conveyance  thereof 
subject  to  its  payment,  or  by  deducting  the  amount  from 
the  consideration  for  the  conveyance,  or  by  some  agree- 
ment between  the  parties  changing  such  liability.1  But, 
where  the  premises  are  conveyed  subject  to  the  mortgage, 
as  between  the  mortgagor  and  his  grantee  the  land  is  the 
primary  fund  for  the  payment  of  the  debt ;  but,  if  the  mort- 
gagor is  required  to  pay  the  debt  secured  by  the  mortgage 
out  of  his  individual  funds,  he  should  be  subrogated  to  the 
rights  of  the  mortgagee,  and  may  have  recourse  to  the 
mortgaged  premises  for  reimbursement.2  The  grantee  does 
not,  however,  become  personally  liable  for  the  mortgage 
debt,  but  the  grantor  mortgagor  continues  personally  lia- 
ble on  his  bond  for  any  deficiency  wnich  may  arise  from  a 
foreclosure  sale  of  the  mortgaged  premises.8  As  a  general 
rule,  one  who  holds  lands  under  a  deed  which,  by  its  terms, 
is  subject  to  a  prior  mortgage,  is  estopped  from  question- 
ing the  consideration  or  validity  of  that  mortgage;4  but 
the  disability  may  be  removed  by  the  grantor  conferring 
upon  the  grantee  the  right  to  question  the  validity  of  the 
mortgage.5 

But  a  grantee  who  covenants  in  the  deed  not  merely  to 
take  subject  to  the  mortgage,  but  to  assume  payment  of 
the  mortgage  debt  as  part  of  the  purchase  price,  becomes 
the  principal  debtor,  and  the  mortgagor  merely  a  surety ;  * 
and  should  the  mortgagee,  after  notice  of  such  assumption, 
release  the  grantee,  or  extend  the  time  of  payment  without 


S  225.     i  Wadsworth  v.  Lyon,  93  N.  Y.  201,  45  Am.  Rep.  190. 

2  Johnson  v.  Ziiik,  51  N.  Y.  333;  Cleveland  v.  Southard,  25  Wis. 
479;  Sweeper  v.  Jones,  35  Vt  317,  82  Am.  Dec.  639;  Stevens  v. 
Church,  41  Conn.  369;  Drury  v.  Holden,  121  111.  130,  13  N.  E.  547. 

s  Belmont  v.  Coman,  22  N.  Y.  438,  78  Am.  Dec.  213;  Bennett  v. 
Bates,  94  N  V.  354;  Shepherd  v.  May,  115  U.  S.  505,  6  Sup.  Ct.  119, 
29  L.  Ed.  456;  Tlchenor  v.  Dodd,  4  N.  J.  Eq.  454;  Cleveland  v. 
Southard,  25  Wis.  479. 

*  Freeman  v.  Auld,  44  N.  Y.  50;  Johnson  v.  Thompson,  129  Mass. 
S98;  Maher  v.  Lanfrom,  86  111.  513. 

5  Bennett  v.  Bates,  94  N.  Y.  354,  371;  Wolbert  v.  Lucas,  10  Pa. 
73,  49  Am.  Dec.  578. 

«  Rice  v.  Sanders,  152  Mass.  108,  *>*  N.  E.  1079,  8  L.  R,  A.  315,  23 
Am.  St.  Rep.  804;  Snyder  v.  Robinson,  35  Ind.  311,  9  Am.  Rep.  738; 
Palmeter  v.  Carey,  63  Wis.  426,  21  N.  W.  793,  23  N.  W.  586, 


462  MORTGAGES.  (Ch.  17 

the  mortgagor's  consent,  the  latter  will  be  discharged  from 
liability  in  the  same  manner  as  any  other  surety.7  It  is 
not  necessary  that  the  assumption  of  the  de"bt  secured  by 
the  mortgage  should  be  expressed  in  any  particular  form. 
If  the  language  clearly  and  unequivocally  shows  an  intent 
on  the  part  of  the  grantee  to  assume  such  debt,  it  will  be 
sufficient.8  A  grantee  who  thus  assumes  payment  of  the 
mortgage  debt  as  part  of  the  consideration  cannot  evade 
liability  thereon  by  contesting  the  validity  of  the  mortgage.9 
In  many  of  the  states  it  is  held  that  the  grantee's  per- 
sonal liability  may  be  enforced  in  an  action  at  law  by  the 
mortgagee,  though  he  was  not  a  party  or  a  privy  to  the 
contract  in  which  the  grantee  assumed  payment.  The  courts 
holding  this  rule  base  it  on  the  theory  that  the  person  for 
whose  benefit  a  promise  is  made  may  enforce  it,  though  he 
be  a  stranger  to  the  contract  and  to  the  consideration ;  as, 
where  A.  transfers  property  to  B.,  and  B.  assumes  payment 
of  A.'s  debts  as  the  consideration  for  the  transfer,  the  cred- 
itors of  A.,  who  are  the  persons  beneficially  interested,  may 
maintain  an  action  at  law  directly  against  B.10  Other  courts, 

t  Calvo  v.  Davies,  73  N.  Y.  211,  215,  29  Am.  Rep.  130;  George  v. 
Andrews,  GO  Aid.  26,  45  Am.  Rep.  706.  But  see  Boardmau  v.  Larra- 
bee,  51  Conn.  39. 

«  Strong  v.  Converse,  8  Allen  (Mass.)  557,  85  Am.  Dec.  732;  Miller 
v.  Thompson,  34  Mich.  10;  Fowler  v.  Fay,  62  111.  375.  In  Thayer  v. 
Torrey,  37  N.  J.  Law,  339,  It  was  held  that  a  provision  In  a  deed 
that  the  amount  of  a  certain  mortgage  shall  be  paid  as  a  part  of 
the  purchase  price  was  an  assumption  of  the  debt;  but  in  Fiske  v. 
Tolman,  124  Mass.  254,  26  Am.  Rep.  659,  a  similar  provision  was 
held  not  to  be  an  assumption. 

o  Crawford  v.  Edwards,  33  Mich.  354;  Ritter  v.  Phillips,  53  N.  Y. 
686. 

10  Lawrence  v.  Fox,  20  N.  Y.  268;  Gifford  v.  Corrigan,  117  N.  Y. 
257,  22  N.  E.  756,  6  L.  R.  A.  610,  15  Am.  St  Rep.  508;  Follansbee 
v.  Johnson,  28  Minn.  311,  9  N.  W.  882;  Ayres  v.  Randall,  108  ind. 
595,  9  N.  E.  464;  Bassett  v.  Hughes,  43  Wis.  319;  Dean  v.  Walker, 
107  111.  540,  545,  47  Am.  Rep.  467;  Bay  v.  Williams,  112  111.  91,  54 
Am.  Rep.  209;  Rockwell  v.  Bank,  31  Neb.  128,  47  N.  W.  641.  In 
late  New  York  decisions  this  general  rule  has  been  limited  to  cases 
where  there  has  been  a  debt  or  duty  owing  from  the  promisee  to 
the  party  suing  on  the  promise,  and  there  has  been  an  intent  to 
benefit  such  party.  Therefore,  where  a  grantee  of  mortgaged  prem- 
ises assumes  and  agrees  to  pay  the  mortgage  as  part  of  the  consid- 
eration, he  Is  not  liable  for  a  deficiency  arising  upon  a  foreclosure 
and  sale  la  case  his  gruiitor  was  uui  personally  liable,  legally  or 


§    226)  REAL-ESTATE    MORTGAGE.  463 

however,  hold  that  the  personal  liability  of  the  grantee  can 
be  enforced  only  in  equity,  on  the  theory  that,  since  the 
mortgagor  is  merely  a  surety,  the  mortgagee  is  entitled  to 
the  benefit  of  any  collateral  security  held  by  the  surety 
against  the  principal,  the  grantee;  and  that,  therefore,  the 
mortgagee  may  proceed  directly  against  the  latter  to  avoid 
circuity  of  action.11 


SAME— FORECLOSURE  OF  MORTGAGE. 

226.  The  remedies  afforded  in  equity  for  enforcing 

the  lien  of  the  mortgagee  are: 
(a)  By  a  strict  foreclosure  proceeding,  -whereby 
the  legal  estate  and  title  of  the  mortgagee 
is  made  absolute  and  indefeasible,  and  the 
equity  of  redemption  held  by  the  mortgagor 
and  those  claiming  under  him  is  cut  off;  and 
0)  By  a  proceeding  for  che  loreclosure  of  the 
mortgage  by  a  judicial  sale  of  the  mortgaged 
premises,  and  an  application  of  the  proceeds 
of  the  sale  in  satisfaction  of  the  mortgage 
debt. 

Strict  Foreclosure. 

In  the  English  system  of  mortgages,  followed,  as  we  have 
seen,  in  some  of  the  American  states,  the  legal  title  to  the 
land  is  regarded  as  vested  in  the  mortgagee.  A  strict  fore- 
closure carries  out  this  theory  of  a  mortgage  by  rendering 
the  legal  title  of  the  mortgagee  absolute  and  indefeasible, 
and  cutting  ,off  forever  the  equity  of  redemption  possessed 
by  the  mortgagor  and  those  claiming  under  him.  In  some 
of  those  states  which  have  adopted  the  legal  theory  of  a 
mortgage  the  remedy  of  strict  foreclosure  is  frequently  em- 
ployed; but  by  statute  in  many  of  such  states  the  use  of 

equitably,  for  the  payment  of  the  mortgage.    Vrooman  T.  Turner, 
69  N.  Y.  280,  25  Am.  Rep.  195. 

"  Crowell  v.  Hospital,  27  N.  J.  Eq.  650;  Keller  v.  Ashford,  133  U. 
8.  610,  620,  10  Sup.  Ct  494,  33  L.  Ed.  667;  Osborne  v.  Cabell,  77  Va. 
462. 


464  MORTGAGES.  (Cli.    17 

strict  foreclosure  has  been  abandoned,  and  the  foreclosure 
by  judicial  sale  substituted  therefor. 

In  England,  and  in  Maine,  New  Hampshire,  Massachu- 
setts, and  Rhode  Island,  the  mortgagee  may  obtain  pos- 
session of  the  premises,  on  default  in  the  payment  of  the 
mortgage  debt,  by  the  legal  action  of  ejectment  or  the  writ  of 
entry.1  The  mortgagor  still  retains  the  right  to  redeem, 
which  continues  for  an  indefinite  period,  and  can  only  be 
cut  off  by  strict  foreclosure  proceedings  in  equity,  instituted 
by  the  mortgagee.  The  English  practice  is  to  order  an 
accounting,  and  then  enter  a  decree  requiring  the  mortgagor 
to  redeem  within  a  certain  period, — generally  six  months, — 
or  be  forever  barred  of  his  equity.  If  the  mortgagor 
fails  to  redeem  within  the  specified  time,  the  legal  estate 
and  title  of  the  mortgagee  become  absolute  and  indefeasible, 
and  a  decree  is  entered  declaring  the  equity  of  redemption 
•  of  the  mortgagor,  and  of  all  other  persons  claiming  under 
him,  subsequent  to  the  mortgagor,  who  were  made  parties 
to  the  suit,  to  be  forever  barred,  cut  off,  and  foreclosed.2 
This  mode  of  foreclosure  is  still  the  usual  one  in  Connecticut 
and  Vermont,  and  may  be  resorted  to  in  some  of  the  other 
states.8 

Foreclosure  by  Judicial  Sale. 

In  nearly  all  the  states  of  the  Union,  the  mortgagee,  on 
default  in  payment  of  the  mortgage  debt,  may  bring  a  suit 
in  equity  which  has  a  twofold  object:  (i)  A  sale  of  the 
premises,  and  the  application  of  the  proceeds  in  satisfaction 
of  the  mortgage ;  (2)  a  personal  judgment  for  any  deficiency 
against  all  persons  liable  for  the  mortgage  debt  *  Statutes 
generally  require  the  action  to  be  brought  in  the  county 
where  the  land  lies.  The  owner  of  the  mortgaged  prem- 
ises, whether  he  be  the  mortgagor  or  his  grantee,  is  a  nec- 
essary party  defendant,  since  its  object  is  to  devest  him  of 
his  title,0  and  all  subsequent  lienors  or  incumbrancers  should 

|  226.     i  2  Jones,  Mortg.  §  1238. 

•  Pom.  Eq.  Jur.  §  1227. 

»  2  Jones,  Mortg.  §§  1542.  1558. 
«  Wilts.  Mortg.  Force.  §  11. 

•  Landon  v.  Townshend,  112  N.  Y.  93.  98,  19  N.  H.  424,  8  Am.  St 
Rep.  712;  Griffin  v.  Hodshlre,  119  Ind.  235,  21  N.  B.  741;  Hambrick 
T.  Russell,  80  Ala,  199,  201,  5  South.  298. 


§    22(5)  REAL-ESTATE    MORTGAGE.  465 

be  made  parties  defendant.*  Prior  mortgagees  and  incum- 
brancers  need  not  be  joined,  since  their  rights  are  not  af- 
fected by  a  sale  under  a  subsequent  mortgage.1  The  de- 
cree of  foreclosure  directs  a  sale  of  the  land  to  be  made  by 
the  proper  judicial  officer.  On  such  sale  the  purchaser  is 
vested  with  the  title  which  the  mortgagor  had  when  the 
mortgage  was  executed  and  recorded,  as  well  as  any  title 
thereafter  acquired  by  him.8  If  the  price  bid  at  the  sale 
exceeds  the  mortgage  debt  and  costs  of  foreclosure,  the 
surplus  takes  the  place  of  the  land,  and  belongs  to  the  per- 
sons whose  estates  or  interests  in  the  land  were  cut  off  by 
the  sale.9  If  the  proceeds  of  the  sale  do  not  equal  the 
amount  of  the  mortgage  debt  and  costs,  the  mortgagee  is 
entitled  to  a  personal  judgment  for  deficiency  against  all 
persons  liable  for  the  mortgage  debt.1* 

Foreclosure  by  Sale  under  a  Power. 

A  more  expeditious  method  of  foreclosure  exists  in  many 
of  the  states  of  this  country,  as  well  as  in  England.11  Mort- 
gages at  the  present  time  are  generally  drawn  with  a  power 
of  sale,  authorizing  a  sale  of  the  premises  at  public  auction 
on  default  in  payment  of  the  mortgage  debt;  and  statutes 
exist  prescribing  how  the  power  must  be  exercised.  These 
statutes  generally  require  the  mortgagee  to  give  public  no- 
tice of  the  sale  by  publication  for  a  specified  time  in  the 
newspapers  of  the  county  where  the  land  is  located.1*  The 
mortgagee  must  exercise  his  power  of  sale  fairly  and  prop- 
erly, and  therefore  he  cannot  buy  the  property  either  in 
person  or  by  an  agent,  unless  authorized  so  to  do  by  stat- 

«  Beach,  Mod.  Eq.  Jur.  §  500;  Kay  v.  Whittaker,  44  N.  Y.  565,  572; 
Cheney  v.  Patton,  134  111.  422,  25  N.  E.  792;  Verden  v.  Sloeuu,  71 
N.  Y.  345. 

7  McComb  v.  Spangler,  71  Gal.  423,  12  Pac.  347;  Goebel  v.  Iffla,  111 
N.  Y.  170,  177,  18  N.  E.  649;  Macloon  v.  Smith,  49  Wls.  200,  5  N.  W. 
836. 

«  Gaylord  y.  City  of  Lafayette,  115  Ind:  423,  17  N.  E.  899;  Barnard 
v.  Wilson,  74  Cal.  513,  16  Pac.  307. 

•  Clarkson  v.  Skidmore,  46  N.  Y.  301;  Lithauer  v.  Royle,  17  N.  J. 
Eq.  40. 

102  Jones,  Mortg.  I  1709. 

«  2  Jones,  Mortg.  §  1764. 

»«  2  Jones,  Mortg.  §  1827;  Shillaber  r.  Robinson,  97  U.  8.  63. 


466  MORTGAGES.  (Gil.    17 

ute  or  by  the  power;18  as,  in  the  case  of  a  sale  under  a 
judicial  decree,  the  purchaser  acquires  the  mortgagor's  title 
as  it  existed  when  the  mortgage  was  executed  and  recorded, 
as  well  as  any  title  subsequently  acquired,14  and  any  sur- 
plus arising  from  the  sale  must  be  accounted  for  to  the 
persons  having  estates  or  interests  in  the  land.1' 

Concurrent  Remedies. 

In  addition  to  his  right  of  foreclosure,  the  mortgagee 
may  maintain  an  action  at  law  against  all  persons  liable  for 
the  mortgage  debt,  and  he  is  entitled  to  recover  the  amount 
of  principal,  interest,  and  costs.16  While  all  these  remedies 
are  concurrent,  the  mortgagee  cannot  retain  more  than  the 
amount  of  his  claim;  and,  if  the  personal  judgment  is  satis- 
fied, he  must  surrender  the  land.1* 

SAME— RIGHTS   AND   LIABILITIES  OP  MORTGAGOR 
AND  MORTGAGEE. 

227.  A  mortgagor  is,  in  most  states,  entitled  to  the 

possession  of  the  mortgaged  premises,  and 
is  not  accountable  for  the  rents  and  profits, 
until  possession  is  duly  taken  by  the  mort- 
gagee. He  may  use  the  premises  in  such  a 
manner  as  they  are  ordinarily  used,  but 
he  will  be  liable  for  waste  which  will  un- 
reasonably impair  the  security  of  the  mort- 
gage. 

228.  A  mortgagee  in  possession  must  exercise  such 

care  and  diligence  over  the  mortgaged  prem- 

«  Martinson  v.  Glower,  21  Ch.  Dlv.  857;  Ezzell  v.  Watson,  83  Ala. 
120,  3  South.  309;  Very  v.  Russell,  65  N.  H.  646,  23  Atl.  522. 

14  Doolittle  v.  Lewis,  7  Johns.  Ch.  (N.  Y.)  45,  11  Am.  Dec.  389;  Sim 
T.  Field,  66  Mo.  111. 

IB  2  Jones,  Mortg.  §  1929;  Cook  v.  Bnsley,  123  Mass.  396;  Buttrick 
T.  Wentworth,  0  Allen  (Mass.)  79;  Ballinger  v.  Bourland,  87  111.  513, 
29  Am.  Hep.  (M);  Brown  v.  Association,  34  Minu.  545,  26  N.  W.  907. 

«  2  Jones.  Mortg.  §  1220.  Lichty  v.  McMartin,  11  Kan.  665;  Van- 
snnt  v.  A  Union,  23  111.  30. 

"  Buruell  v.  Martin,  2  Doug.  Elect  Cas.  417;  2  Jones,  Mortg.  § 
1215. 


§§    227-228)  REAL-ESTATE    MORTGAGE.  467 

ises  as  a  prudent  person  would  exercise  in 
respect  to  his  own  property;  and  he  must 
account  for  the  rents  and  profits  of  the 
premises  while  he  holds  the  same  under 
his  mortgage.1 

It  is  the  common  custom  in  this  country  for  the  mort- 
gagor to  remain  in  possession  of  the  mortgaged  premises 
until  by  foreclosure  he  has  been  devesled  of  his  rights. 
While  the  mortgagor  is  in  possession,  he  may  exercise  the 
ordinary  rights  of  ownership;  he  may  recover  for  trespass 
on  the  property ; 2  he  may  convey  "or  lease  the  premises, 
and  may  maintain  an  action  to  recover  possession  thereof. 
It  has  been  almost  universally  held  that  the  mortgagor  is 
not  accountable  to  the  mortgagee  for  the  rents  and  profits 
until  the  possession  is  transferred  to  the  mortgagee.8 

The  mortgagor  may  use  the  property  in  his  possession 
in  the  same  manner  as  such  property  is  ordinarily  used, 
but  he  cannot  so  use  it  as  to  impair  the  security  of  the 
mortgage.  If  the  value  of  the  property  is  sufficient  to  af- 
ford adequate  security  for  the  mortgage,  the  mortgagor 
may  be  permitted  to  cut  the  timber  on  the  mortgaged  land.4 
But,  if  a  continuance  of  the  waste  would  so  lessen  the  value 
of  the  property  as  to  render  the  security  inadequate,  an  in- 
junction may  be  had  by  the  mortgagee,  and  in  such  a  case 
it  is  not  necessary  to  allege  or  prove  the  insolvency  of  the 
mortgagor.5 

A  mortgagee  in  possession  must  use  the  premises  as  an 
ordinarily  prudent  owner.  He  is  chafged  with  the  rents 
and  profits  of  the  mortgaged  premises  while  he  holds  the 

§§  227,  228.     i  Beach,  Mod.  Eq.  Jur.  §  430. 

«  Talcott  v.  Peterson,  63  111.  App.  421;  Bird  r.  Decker,  64  Me.  550. 

»  Freedman's  Savings  &  Trust  Co.  v.  Shepperd,  127  U.  S.  494,  502, 
8  Sup.  Ct.  1250,  32  L.  Ed.  163;  Teal  v.  Walker,  111  U.  S.  242,  4  Sup. 
Ct.  420,  28  U  Ed.  415;  Murray  v.  Riley,  140  Mass.  490,  6  N.  E.  512; 
Noyes  v.  Rich,  52  Me.  115;  Argall  v.  Pitts,  78  N.  Y.  239. 

4  Bagnall  v.  Villar,  12  Ch.  Div.  812;  King  v.  Smith.  2  Hare,  242; 
Searle  v.  Sawyer,  127  Mass.  491,  34  Am.  Rep.  425. 

6  Stark  v.  Redfleld,  52  Wis.  349,  9  N.  W.  168;  Harris  v.  Bannon,  78 
Ky.  568;  Coker  v.  Whitlock,  54  Ala.  180;  Angier  v.  Agnew,  98  Pa. 
687;  Verner  v.  Betz,  46  N.  J.  Eq.  256,  19  Atl.  206,  7  L.  R.  A.  630,  19 
Am.  St  Rep.  387;  Taylor  v.  Collins,  88  111.  107. 


468  MORTGAGES.  (Oh.    17 

same  under  his  mortgage.6  The  doctrine  upon  which  this 
rule  is  based  has  been  stated  thus:  "While  the  mortgagee 
is  the  holder  of  the  legal  title  to  the  premises,  he  holds  it, 
nevertheless,  subject  to  the  equitable  right  of  the  mortgagor 
to  pay  the  debt,  and  thus  put  an  end  to  his  legal  title.  The 
mortgagee  is  entitled  to  no  more  than  the  mortgage  is  in- 
tended to  secure.  So,  when  the  mortgagor  desires  to  re- 
deem from  the  mortgagee  in  possession,  he  can,  in  equity, 
call  upon  the  mortgagee  to  account  for  the  rents  and  profits 
received  by  him,  for  the  purpose  of  determining  how  much, 
if  anything,  is  required  in  order  to  discharge  the  mortgage 
debt."  7  If  the  premises  are  occupied  by  tenants,  he  is 
chargeable  with  the  actual  rents  and  profits  received,  and 
no  more,  unless  he  has  been  guilty  of  willful  default.8 


SAME— REDEMPTION. 

229.  All  persons  may  redeem  who  have  an  inter- 
est in  the  property  subject  to  the  mortgage. 
The  redemption  can  only  be  made  by  pay- 
ment of  the  entire  mortgage  debt;  and, 
consequently,  if  the  person  redeeming  is 
not  primarily  liable  for  the  debt,  and  he  re- 
deems because  of  his  liability  as  surety,  or 
because  he  holds  an  interest  in  the  mort- 
gaged premises  which  the  foreclosure  of 
the  mortgage  would  destroy,  he  is  entitled 
to  •  be  subrogated  to  the  rights,  and  to  oc- 
cupy the  position,  of  the  creditor  from 
•whom  he  redeems. 

•  Toomer  v.  Randolph,  60  Ala.  356;   Wood  y.  Whelen,  93  111.  153: 
Clark  v.  Clark,  62  N.  H.  267. 

T  Gaskell  v.  Vlquesney,  122  Ind.  244,  23  N.  E.  791,  17  Am.  St.  Rep. 
864. 

•  Harper  v.  Ely,  70  111.  581;  Moore  y.  Tltman,  44  111.  3G7;  Finneo 
T.  Goodspeed,  120  111.  524,  533,  12  N.  E.  19«;   Merriam  v.  Goss,  130 
Mass.  83,  28  N.  E.  449;  Brown  v.  Bank,  148  Mass.  300,  19  N.  E.  332; 
Van  Buren  y.  Olimtead,  5  Paige  (N.  Y.)  9;    Quiim  v.  Brittoin,  3 
Edw.  Ch.  (N.  Y.)  314. 


§    229)  REAL-ESTATE    MORTGAGE.  469 

In  the  English  system  of  mortgages  the  equity  of  re- 
demption signifies  the  right  of  the  mortgagor  to  pay  the 
mortgage  debt  after  default,  and  thus  regain  possession  of  the 
premises.  The  usual  method  of  redemption  under  this  sys- 
tem is  by  a  suit  in  equity,  and  in  his  bill  the  mortgagor  ten- 
ders the  amount  due  on  the  mortgage  debt.  A  decree  is  then 
made  compelling  the  mortgagee  to  deliver  possession.  This 
method  of  redemption  prevails  in  those  states  where  the 
dual  English  system  exists.1 

In  most  of  the  states,  where  the  mortgage  vests  no  title 
in  the  mortgagee,  and  does  not  entitle  him  to  the  posses- 
sion, and  where  the  mortgage  is  foreclosed  simply  by  the 
exercise  of  the  power  of  sale  therein,  statutes  exist  con- 
ferring on  the  mortgagor,  and  those  claiming  under  him, 
the  right  to  redeem  by  paying  to  the  purchaser,  within  a 
specified  time, — generally  a  year  after  the  sale, — the  amount 
of  his  bid,  with  interest.2  This  statutory  right  is  in  ad- 
dition to  the  equitable  right  of  redemption.  It  comes  into 
existence  only  after  the  equity  of  redemption  proper  has  been 
cut  off  by  sale  or  foreclosure.8 

The  right  to  redeem  accompanies  every  mortgage.*  It 
is  guarded  most  jealously  by  the  courts,  in  order  to  pre- 
vent injustice  and  oppression;  and  it  can  only  be  extin- 
guished by  the  free  act  of  the  mortgagor  for  a  valuable 
consideration,  by  the  judgment  of  a  court,  or  proceedings 
out  of  court  which  are  the  statutory  equivalent  of  such  a 
judgment,  or  by  the  neglect  of  the  mortgagor  to  assert  it 
for  such  a  length  of  time  that  he  is  presumed  by  law  to 
have  relinquished  it.B  As  a  general  rule,  twenty  years'  pos- 
session by  the  mortgagee  without  any  account  or  acknowl- 
edgment of  the  mortgage  is  a  bar  to  the  redemption,  un- 

§  229.    i  2  Jones,  Mortg.  §  1093  et  seq. 

2  This  right  exists  In  Alabama,  Arkansas,  California,  Colorado, 
Illinois,  Indiana,  Iowa,  Minnesota,  Missouri,  Nevada,  New  Mexico, 
North  Dakota,  Oregon,  South  Dakota,  Tennessee,  and  Washington, 
In  Michigan  the  sale  cannot  take  place  until  a  year  after  the  bill  to 
foreclose  is  filed,  and  in  Wisconsin  not  until  a  year  after  the  decree. 
Bee  2  Jones,  Mortg.  §  1051,  and  notes. 

»  Mewb  urn's  Heirs  v.  Bass,  82  Ala.  622,  2  South.  520. 

«  Henry  v.  Davis,  7  Johns.  Ch.  (N.  Y.)  40,  affirmed  in  2  Cow.  (N. 
Y.)  324. 

B  Holdridge  v.  Gillespie,  2  Johns.  Ch.  (N.  Y.)  30;  Odell  y.  Montross, 
6  Hun  (N.  Y.)  155. 


470  MORTGAGES.  (Ch.   17 

less  the  mortgagor  can  bring  himself  within  some  of  the 
exceptions  made  for  disabilities.6  Statutes  have  been  passed 
in  many  of  the  states  limiting  the  time  within  which  such 
actions  must  be  brought ; 7  but,  independent  of  any  such 
statutes,  the  time  stated  in  such  rule  Is  adopted  by  courts 
of  equity  in  analogy  to  the  statute  of  limitations.8 

The  right  to  redeem  belongs  to  the  mortgagor,  and  to 
all  persons  entitled  to  any  interest  in  any  part  of  the  mort- 
gaged premises  under  or  through  the  mortgagor.9  Judg- 
ment creditors  10  and  junior  mortgagees11  may  redeem,  since 
they  have  liens  on  the  property.  The  mortgagor's  heirs 
may  exercise  the  right,  and  so  may  his  grantee,  if  the  prem- 
ises have  been  conveyed.12  The  land  must,  however,  be  re- 
deemed as  a  whole.  Since  the  entire  premises  stand  as  se- 
curity for  the  whole  debt,  the  mortgagee  need  not  accept 
payment  in  installments,  and  cannot  be  compelled  to  re- 
lease a  specific  portion  of  the  land  from  the  lien  of  the 
mortgage.18 

Right  of  Subrogation,  Contribution,  and  Exoneration. 

Where  a  person  interested  in  the  premises,  who  is  not 
primarily  liable  for  the  mortgage  debt,  pays  the  mortgage, 
and  clears  the  premises  from  its  lien,  he  may  regard  the 
transaction  as  an  equitable  assignment  of  the  mortgage  to 
himself,  and  may  keep  it  alive  to  protect  his  own  rights 

•  Jackson  v.  Lynch,  129  111.  72,  21  N.  E.  580,  22  N.  E.  246;    Locke 
y.  Caldwell,  91  111.  417;  Stevens  v.  Dedham  Institute,  129  Mass.  541; 
Chapiu  v.  Wri-ht.  41  X.  J.  Eq.  438,  5  All.  574;   Hoffman  v.  Harring- 
ton, 33  Mich.  302. 

»  Code  Civ.  Proc.  N.  Y.  §  379;   Civ.  Code  Cal.  §  346. 

«  Demarest  v.  Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129,  8  Am.  Dec.  467. 

•  Boqut  v.  Coburn,  27  Barb.  (N.  Y.)  230. 

10  Willard  v.  Finnegan,  42  Minn.  47G,  44  N.  W.  985,  8  L.  R.  A.  50; 
Bozarth  v.  Largent,  128  111.  95,  21  N.  E.  218;  Cramer  v.  Watson,  73 
Ala.  127;   Mallalieu  v.  Wickham,  42  N.  J.  Eq.  297,  10  Atl.  880. 

11  TVombly  v.  Cassidy,  82  N.  Y.  155;    Gaskell  v.  Viquesney,  122 
Ind.  244,  23  N.  E.  7U1,  17  Am.  St  Rep.  364;    Lewis  v.  Hlnman,  50 
Conn.  55,  13  Atl.  143. 

n  Alexander  v.  Hill,  88  Ala.  487.  7  South.  238;  Hunter  v.  Dennis, 
112  111.  568;  Pym  r.  Bowreman,  3  Swanst.  241,  note;  Zaegel  v.  Kus- 
ter,  51  Wls.  31,  7  N.  W.  781;  Chew  v.  Hyman,  10  Biss.  240,  7  Fed.  7. 

»3  Meat-ham  v.  Steele,  93  111.  135;  Lamb  v.  Montague,  112  Mass. 
853;  Spurgin  v.  Adamson,  62  Iowa,  661,  18  N.  W.  293;  Coffin  v.  Par- 
ker. 127  N.  Y.  117,  27  N.  E.  814. 


§    229)  REAL-KSTATE    MORTGAGE.  471 

against  others  who  are  owners  of  or  interested  in  the  land.14 
If  any  such  person  exercises  his  right  of  redemption,  he 
must  redeem  the  entire  mortgage  by  paying  all  of  the  mort- 
gage debt,  in  which  case  he  is  entitled  to  contribution  from 
the  other  persons  interested  in  the  premises,  according  to 
the  value  of  the  interests  of  such  persons.  To  enforce  the 
right  of  contribution,  the  doctrine  of  equitable  assignment 
is  applied,  and  the  person  redeeming  the  mortgage  may  be 
subrogated  to  all  the  rights,  and  occupy  the  position,  of  the 
mortgagee  from  whom  he  has  redeemed  the  mortgage.  If 
the  equities  of  the  parties  are  equal,  then  the  others  must 
contribute  ratably  to  the  one  who  has  effected  the  redemp- 
tion,— as,  where  a  mortgage  is  placed  upon  land  owned  by 
two  or  more  persons,  whose  interests  therein  are  equal,  if 
one  of  such  persons  redeems  from  the  mortgage,  he  may 
compel  a  pro  rata  contribution  from  his  co-owners;16  and 
where  the  mortgagor  conveys  the  mortgaged  premises  by 
simultaneous  deeds  to  different  persons,  neither  of  whom 
assumes  payment  of  the  mortgage,  the  one  redeeming  may 
enforce  contribution  from  the  others.16 

Where  the  equities  of  the  parties  are  unequal,  the  one 
having  the  superior  equity  is  entitled,  not  merely  to  con- 
tribution from,  but  to  exoneration  by,  the  one  having  the 
inferior  equity.  Thus,  where  a  mortgagor  conveys  a  por- 
tion of  the  mortgaged  premises  by  a  deed  in  which  the. 
grantee  does  not  assume  payment  of  the  mortgage,  the 
portion  in  the  mortgagor's  hands  is  primarily  liable  for  the 
mortgage  debt;  and,  if  the  grantee  redeems,  he  may  en- 
force the  entire  mortgage  against  the  portion  of  the  prem- 
ises still  in  the  mortgagor's  possession.17  And,  if  the  en- 
tire premises  are  conveyed  at  different  times  to  different 
grantees,  the  maxim  which  applies  is :  Where  the  equities 
are  equal,  the  first  in  order  of  time  prevails ;  and  hence  the 


i*  Pom.  Eq.  Jur.  §§  1211,  1212,  1221. 

IB  Chase  v.  Woodbury,  6  Cush.  (Mass.)  143;  Damin  v.  Damm,  91 
Mich.  424,  51  N.  W.  1069;  Aiken  y.  Gale,  37  N.  H.  501. 

i«  Adams  v.  Smilie,  50  Vt  1. 

IT  Cheever  v.  Fair,  5  Cal.  337;  Hall  v.  Morgan,  79  Mo.  47;  Sar- 
geant  v.  Rowsey,  89  Mo.  617,  1  S.  W.  823.  The  converse  of  this 
proposition  is  also  true:  If  the  mortgagor  redeems,  he  cannot  en- 
force contribution  from  the  grantee.  2  Jones,  Mortg.  §  1091;  Wal- 
lace v.  Stevens,  64  Me.  225;  Henderson  v.  Truitt,  95  Ind.  309. 


472  MORTGAGES.  (Ch.   17 

rule  is  that,  as  between  the  grantees,  the  parcels  are  liable 
in  the  inverse  order  of  their  alienation.18 


MORTGAGES    AND    PLEDGES   OF  PERSONAL  PROP- 

ERTY. 

230.  A  chattel  mortgage  is  a  transfer  of  personal 

property  as  security  for  a  debt  or  obliga- 
tion in  such  form  that,  upon  failure  by  the 
mortgagor  to  comply  -with  the  terms  of  the 
contract,  the  title  of  the  property  will  be 
in  the  mortgagee.1  At  law,  upon  breach  of 
the  condition,  the  title  vests  absolutely  in 
the  mortgagee;  but  in  equity,  as  in  the 
case  of  real-estate  mortgages,  the  mortga- 
gor retains  an  equity  of  redemption  not- 
withstanding his  breach. 

231.  A  pledge  is  a  security  created  by  the  actual 

or  constructive  delivery  of  a  personal  chat- 
tel to  a  bailee  or  pledgee  ;  the  general 
property  remaining  in  the  pledger,  the 
pledgee  having  only  a  special  property  or 
right  of  retainer  until  the  debt  is  paid. 

In  most  of  the  states  a  chattel  mortgage  vests  the  mort- 
gagee with  a  legal  title  of  the  property,  which  title  becomes 
absolute  at  law  upon  the  mortgagor's  failure  to  perform  the 
condition.2  While,  by  the  mortgagor's  default,  the  legal 
title  of  the  mortgagee  becomes  absolute,  equity  has  vested 
the  mortgagor  with  a  right  to  redeem  within  a  reasonable 

"National  Sav.  Bank  v.  Creswell,  100  U.  S.  630,  25  L.  Kd.  713; 
Moore  v.  Shurtleff,  128  111.  370,  21  N.  K.  775;  Clowes  v.  Dickinson,  5 
Johns.  Ch.  (N.  Y.)  235,  240;  Milligan's  Appeal,  104  Pa.  503;  Worth 
T.  Hill,  14  Wls.  559. 

§§  230,  231.     i  Thomas,  Mortg.  427. 

*  The  Civil  Code  of  California  provides  that  a  chattel  mortgage 
creates  merely  a  lien  on  the  property  mortgaged.  Civ.  Code,  §  2920. 
But  see  Taber  v.  Hamlin,  VI  Mass.  489,  93  Am.  Dec.  113;  Burtls  v. 
Bradford,  122  Mass.  128. 


§§  230-231)       PERSONAL  PROPERTY  MORTGAGES  &  PLEDGES.      473 

time  after  such  default.8  To  cut  off  this  right  of  redemp- 
tion, it  is  not  necessary  for  the  mortgagee  to  bring  a  fore- 
closure suit  in  equity,  as  in  the  case  of  real  estate  mort- 
gages. He  can  bar  the  equity  of  redemption  by  a  public 
sale  of  the  property  made  on  due  notice,  without  any  suit.4 

The  right  to  redeem  personal  property  carries  with  it  the 
right  to  have  an  account  of  the  rents  and  profits  of  the 
mortgaged  property  while  the  mortgagee  has  been  in  pos- 
session, and,  pending  litigation,  up  to  the  time  of  making 
the  final  decree.  If  this  were  not  so,  the  right  to  redeem 
would  be,  in  many  cases,  entirely  defeated  by  a  protracted 
litigation.6  The  right  of  foreclosure  and  redemption  is  now 
regulated  by  statute  in  all  the  states.* 

The  law  of  pledges  falls  under  the  head  of  bailment  at 
common  law,  rather  than  under  any  doctrine  in  equity,  and 
is  referred  to  here  merely  for  the  purpose  of  distinguish- 
ing it  from  that  applicable  to  chattel  mortgages.  To  create 
a  pledge,  no  transfer  of  the  legal  title  is  necessary,  but 
there  must  be  a  transfer  of  the  possession.  The  general 
title  to  the  property  remains  in  the  pledger,  and  the  pledgee 
has  only  a  special  property,  or  right  of  retainer,  until  the 
debt  is  paid.7  The  pledger  has  a  right  to  redeem,  even  at 
law,  at  any  time  after  default,  and  before  a  public  sale  of 
the  pledged  property  by  the  pledgee.* 

«  Kemp  v.  Westbrook,  1  Ves.  Sr.  278;  Flanders  v.  Chamberlain,  24 
Mich.  305,  315;  Davis  v.  Hubbard,  38  Ala.  185,  189;  Boyd  v.  Beau- 
din,  54  Wis.  198,  11  N.  W.  521. 

*  Patchin  v.  Pierce,  12  Wend.  (N.  Y.)  61,  63;  Long  Dock  Co.  v. 
Mallery,  12  N.  J.  Eq.  93;  Denny  v.  Faulkner,  22  Kan.  89,  100;  First 
Nat.  Bank  v.  Damm,  63  Wis.  249,  23  N.  W.  497;  Broadhead  v.  Mc- 
Kny.  46  Ind.  595;  In  re  Morritt,  18  Q.  B.  Div.  222. 

e  Pratt  v.  Stiles,  17  How.  Prac.  (N.  Y.)  211,  222. 

«  See  Jones, x  Chat.  Mortg.  c.  18,  where  the  statutes  of  all  the 
states  are  collected. 

T  Jones  v.  Smith,  2  Ves.  Jr.  378;  Walker  v.  Staples,  5  Allen  (Mass.) 
84;  Wright  v.  Ross,  36  Cal.  414. 

«  Jones  v.  Smith,  2  Ves.  Jr.  372.  378. 


474  EQUITABLE    LIENS.  (Ch.   18 

CHAPTER  XVIH. 

EQUITABLE  LIENS. 

232.  Definition  and  Nature. 

233.  Equitable  Mortgages,  how  Created. 

234- -235.    Equitable  Liens  Arising  from  Considerations  of  Justice. 
230.     Equitable  Liens  Arising  from  Charges  by  Will  or  Deed. 

237.  Vendor's  Lien. 

238.  Under  Contracts  of  Sale. 

239.  Arising  after  Conveyance  of  Land. 

DEFINITION  AND  N  A  TUBE. 

232.  An  equitable  lien  is  a  right  to  subject  a 
particular  fund  or  specific  property  to  the 
satisfaction  of  a  demand.  It  is  a  charge  on 
the  property,  and  not  an  estate  or  interest 
in  the  property.  It  can  only  be  enforced 
in  equity,  and  is  not  dependent,  like  a 
common-law  lien,  upon  the  possession  or 
retention  of  the  property  charged  there- 
with. 

A  l«en  at  common  law  is  defined  as  "a  right  in  one  man 
to  detain  that  which  is  in  his  possession,  belonging  to  an- 
other, till  certain  demands  of  him,  the  person  in  posses- 
sion, are  satisfied."  *  In  courts  of  equity  the  term  "lien" 
is  used  as  synonymous  with  a  charge  or  incumbrance  upon 
a  thing,  where  there  is  neither  jus  in  re  nor  ad  rem,  nor  pos- 
session of  the  thing.3  In  no  case  is  an  equitable  lien  de- 
pendent upon  the  possession  or  retention  of  the  property  on 

I  232.  »  Hammonds  v.  Barclay,  2  East,  227.  This  definition  has 
been  accepted  as  a  correct  one  by  many  writers.  Beach,  Eq.  Jur. 
I  287.  Story  defines  a  lien  at  common  law  as  "right  to  possess  and 
retain  property  until  some  charge  attaching  to  It  Is  paid  or  dis- 
charged." Story,  Eq.  Jur.  §  377. 

»  Beach,  Mod.  Eq.  Jur.  §  287,  citing  Peck  y.  Jenness,  7  How.  612. 
12  L.  Ed.  841,  per  Grler,  J. 


§    233)  EQUITABLE    MORTGAGES,  HOW    CREATED.  475 

which  it  is  charged.8  Prof.  Pomeroy  ascribes  the  origin  of 
equitable  liens  to  the  fact  that  in  the  great  majority  of  cases 
courts  of  law  could  confer  only  a  pecuniary  remedy  for 
breach  of  contract,  while  courts  of  equity  viewed  contracts 
as  creating  a  right  in  specific  property;  and  equitable  liens 
were  introduced  "for  the  sole  purpose  of  furnishing  a  ground 
for  the  specific  remedies  which  equity  confers,  operating  on 
particular  identified  property,  instead  of  the  general  pecun- 
iary recoveries  granted  by  courts  of  law."  * 


EQUITABLE   MORTGAGES,   HOW  CREATED. 

233.  An   equitable   mortgage   is  a    charge  or  lien 
on  property  created. 

(a)  By  an  agreement  to  give  a  mortgage. 

(b)  By  the  imperfect  execution  of  a  mortgage. 

(c)  By  a  deposit  of  title  deeds. 

(d)  By  a    formal  mortgage  of   an  estate  recog- 

nized only  in  equity. 

Many  text  writers  do  not  employ  the  term  "equitable 
mortgage,"  but  use  the  term  "equitable  lien"  as  including 
within  its  meaning  an  equitable  mortgage.  In  speaking  of 
the  doctrine  of  equitable  liens  arising  from  express  con- 
tracts, Prof.  Pomeroy  uses  the  following  language,  which  is 
also  applicable  to  equitable  mortgages  created  as  above 
specified :  "The  doctrine  may  be  stated  in  its  most  general 
form,  that  every  express  executory  agreement  in  writing, 
whereby  the  contracting  party  sufficiently  indicates  an  in- 
tention to  make  some  particular  property,  real  or  personal, 


«  "An  equitable  lien  is  not  an  estate  or  property  in  the  thing  it- 
self, nor  a  right  to  recover  the  thing;  that  is,  a  right  which  may  be 
the  basis  of  a  possessory  action.  It  is  neither  a  jus  ad  rem  nor  a 
jus  in  re.  It  is  simply  a  right  of  a  special  nature  over  the  thing, 
which  constitutes  a  charge  or  incumbrance  upon  the  thing,  so  that 
the  very  thing  itself  may  be  proceeded  against  in  an  equitable  ac- 
tion, and  either  sold  or  sequestered  under  a  judicial  decree,  and  its 
proceeds,  in  the  one  case,  or  its  rents  and  profits,  in  the  other,  ap- 
plied upon  the  demand  of  the  creditor  In  whose  favor  the  lien  ex- 
ists." Pom.  Bq.  Jur.  §  1233. 

«  Pom.  Eq.  Jur.  §  1234. 


476  EQUITABLE    LIENS.  (Ch.    18 

or  fund,  therein  described  or  identified,  a  security  for  a  debt 
or  other  obligation,  or  whereby  the  party  promises  to  con- 
vey, or  assign,  or  transfer  the  property  as  security,  creates 
an  equitable  lien  upon  the  property  so  indicated,  which  is 
enforceable  against  the  property  in  the  hands  not  only  of 
the  original  contractor,  but  of  his  heirs,  administrators,  ex- 
ecutors, voluntary  assignees,  and  purchasers  or  incumbran- 
cers  with  notice.  Under  like  circumstances,  a  merely  ver- 
bal agreement  may  create  a  similar  lien  on  personal  prop- 
erty." *  There  must  be  a  specific  designation  of  the  prop- 
erty to  which  the  lien  is  to  attach,  or  at  least  a  description 
sufficiently  accurate  to  indicate  the  property  which  is  to  be 
subjected  thereto,  in  order  to  create  an  equitable  mortgage, 
and  there  must  be  language  showing  clearly  an  intent  to 
create  such  mortgage.2 

Agreement  to  Give  Mortgage. 

On  the  principle  that  what  is  agreed  to  be  done  is  re- 
garded in  equity  as  done,  an  express  agreement  in  writing 
to  give  a  mortgage  is  treated  as  an  equitable  mortgage.3 
This  principle  applies  with  especial  force  to  agreements  to 
mortgage  property  to  be  acquired  in  the  future.  When  the 
property  is  acquired,  it  stands  charged  with  the  lien,  just 
as  if  a  mortgage  had  been  formally  executed.4  But  in  all 
such  cases  the  agreement  must  be  sufficiently  clear  and  ex- 
plicit to  enable  the  court  to  give  effect  to  the  understanding 
of  the  parties.6 

Imperfect  Execution. 

Equity  regards  substance,  and  not  form;  and,  though  a 
mortgage  is  not  executed  with  all  the  formalities  required 
by  law,  equity  will  uphold  it  if  it  appears  that  the  parties 

I  233. .  i  Pom.  Eq.  Jur.  f  1235. 

*  Williams  v.  Lucas,  2  Cox,  160;  Countess  of  Mornington  v.  Keane, 
2  De  Gex  &  J.  292;  Adams  v.  Johnson,  41  Miss.  258;  Goembel  v.  Ar- 
nett,  100  111.  34. 

>  Hull  v.  Hall,  50  Conn.  104;  Read  v.  Gnillard,  2  Desaus.  Eq.  (S. 
C.)  552.  2  Am.  Dec.  696;  In  re  Howe,  1  Paige  (N.  Y.)  125,  19  Am. 
Dec.  395;  Payne  v.  Wilson,  74  N.  Y.  348;  Starks  T.  Redfleld,  52 
Wis.  349,  9  N.  W.  168. 

«  Holroyd  v.  Marshall,  10  H.  L.  Cas.  191;  Chester  v.  Juim-1,  125 
N.  Y.  237,  251.  26  N.  E.  297;  Taylor  v.  Huck,  66  Tex.  238;  Powell  T. 
Jones,  72  Ala.  302. 

•  McClintock  v.  1-aing.  22  Mich.  212. 


§    233)  EQUITABLE    MORTGAGES,  HOW    CREATED.  477 

intended  to  execute  a  mortgage  on  specified  property  to 
secure  a  certain  debt.8  And,  although  neither  the  word 
"lien"  nor  "mortgage"  appears  in  the  contract,  yet  if,  from 
its  character,  it  is  manifest  that  it  was  contemplated  by  the 
parties  that  the  property  specified  therein  should  constitute 
a  security  for  the  performance  of  the  obligation,  equity  will 
give  effect  to  the  intention.7  As  was  said  by  Lord  Justice 
James:  "I  apprehend  that,  where  this  court  is  satisfied 
that  it  was  intended  to  create  a  charge,  and  that  the  parties 
who  intended  to  create  it  had  the  power  to  do  so,  it  will 
give  effect  to  that  intention,  notwithstanding  any  mistake 
which  may  have  occurred  in  the  attempt  to  effect  it."  8  As 
where,  upon  receiving  a  grant  of  land,  the  grantee  executed 
an  agreement,  not  under  seal,  to  support  and  maintain  the 
grantor,  pledging  for  that  purpose  the  produce  of  the  land, 
and,  should  that  prove  insufficient,  appropriating  the  entire 
fee,  it  was  held  that  such  agreement,  being  the  consider- 
ation of  the  grant,  was  an  equitable  mortgage  of  the  land.9 
And  a  deed  of  trust,  which  is  inoperative  at  law  because  of 
a  failure  to  insert  the  name  of  the  trustee,  if  the  deed  is 
perfect  in  other  respects,  will  be  considered  in  equity  as  an 
equitable  mortgage.10  A  lack  of  formality  in  the  execu- 
tion or  acknowledgment  of  instruments  intended  as  mort- 
gages will  not  destroy  their  character  as  mortgages,  but 
they  will  be  treated  as  equitable  liens  on  the  property  in- 
tended to  be  charged  therewith.11 

Deposit  of  Title  Deeds. 

In  England  a  deposit  of  title  deeds  by  a  debtor  with  his 
creditor  constitutes  an  equitable  mortgage,  even  though 

«  Payne  v.  Wilson,  74  N.  Y.  348;  Walton  v.  Cody,  1  Wis.  420; 
Dunman  v.  Colernan,  59  Tex.  199;  New  Vienna  Bank  v.  Johnson,  47 
Ohio  St.  306,  24  N.  E.  503;  New  Orleans  Nat.  Banking  Ass'n  v. 
Adams,  109  U.  S.  211,  3  Sup.  Ct.  161,  27  L.  Ed.  910;  Bank  of  Mus- 
kingura  v.  Carpenter's  Adm'rs,  7  Ohio,  pt.  1,  p.  21,  28  Am.  Dec.  616. 

7  Dunman  v.  Coleman,  59  Tex.  199;  Weed  v.  Mlrick,  62  Mich.  414, 
29  N.  W.  78;  Whittemore  v.  Fisher,  132  111.  243,  24  N.  B.  636. 

•  In  re  Strand  Music  Hall  Co.,  3  De  Gex,  J.  &  S.  147. 

•  Chase  v.  Peck,  21  N.  Y.  581. 
10  McQule  v.  Peay,  58  Mo.  56. 

"  McClarg  v.  Phillips,  49  Mo.  315;  Dunn  v.  Raley,  58  Mo.  134; 
Burnet  v.  Boyd,  60  Miss.  627;  Abbott  T.  Godfrey's  Heirs,  1  Mich. 


478  EQUITABLE    LIENS.  (Ch.   18 

there  is  no  written  contract  or  memorandum  stating  why 
they  were  so  deposited.  The  statute  of  frauds  does  not 
apply  to  a  mortgage  created  by  such  deposit,  since  equity 
will  not  permit  the  statute  to  be  made  an  instrument  of 
fraud;  and,  holding  that  the  deposit  is  conclusive  evidence 
of  an  agreement  under  which  one  has  advanced  money  on 
the  faith  of  the  deposit,  it  will  not  allow  the  depositor  to 
set  up  the  statute  for  the  obvious  purpose  of  swindling  his 
creditor.12  This  method  of  creating  a  lien  on  land  was 
peculiarly  adapted  to  England  at  a  time  when,  in  the  ab- 
sence of  laws  requiring  the  registration  of  instruments  con- 
veying real  property,  the  possession  of  the  title  deeds  was 
the  only  evidence  of  the  ownership  of  the  land.  No  one 
was  presumed  to  have  the  right  to  their  possession  unless 
he  had  an  equitable  or  legal  title  to  the  land  described 
therein,  and  their  exhibition  when  a  conveyance  was  exe- 
cuted was  the  only  safeguard  of  the  vendee  that  the  valid 
title  was  in  the  vendor.  In  this  country  registry  laws  have 
done  away  with  the  necessity  of  the  exhibition  of  title  deeds. 
A  vendee  may  examine  the  records,  and  be  assured  as  to 
the  validity  of  the  title  which  he  is  to  acquire.  The  creation 
of  an  equitable  mortgage  by  the  mere  deposit  of  title  deeds 
has  not,  therefore,  been  looked  upon  with  favor  by  our 
courts ;  and  for  the  most  part  the  English  doctrine  has  been 
repudiated  as  wholly  inconsistent  with  our  statutory  system 
of  registry  and  methods  of  conveyancing.18  The  English 
doctrine  of  an  equitable  mortgage  resulting  from  a  deposit 
of  title  deeds  assumes  a  simple  deposit  as  security,  without 
any  express  written  agreement.  But,  if  the  deposit  of  the 
deeds  should  be  accompanied  by  a  written  agreement  to 
the  effect  that  the  lands  described  therein  were  to  be  con- 
sidered as  a  security  for  the  payment  of  a  debt,  such  agree- 

«  Russell  v.  Russell,  1  Brown,  Ch.  2C9;  1  White  &  T.  Lead.  Cas. 
Eq.  931;  Keys  T.  Williams,  3  Younge  &  G.  55. 

is  Mortgages  by  deposit  of  title  deeds  have  been  recognized  In 
some  of  the  American  states.  Mounce  v.  Byars,  16  Ga.  4(!9;  Hack- 
ett  v.  Reynolds,  4  R,  I.  512;  Rockwell  v.  Hobby,  2  Sandf.  Ch.  (N.  Y.) 
9;  Griffin  v.  Griffin,  18  N.  J.  Eq.  KM;  Mowry  v.  Wood,  12  Wls.  413; 
Edwards'  Ex'rs  v.  Trumbull,  50  Pa.  509;  Bloom  v.  Noggle,  4  Ohio 
St  45,  40.  In  others,  the  doctrine  has  been  repudiated.  Lehman  v. 
Collins,  G9  Ala.  127;  Bicknell  v.  Bicknell,  31  Vt.  498;  Gothard  v. 
Flynn,  25  Miss.  58. 


§§    234-235)        ARISING  FROM  CONSIDERATIONS  OF  JUSTICE.        479 

ment  would,  under  the  principles  laid  down  as  above,  con- 
stitute an  equitable  mortgage  of  such  lands.1* 

Mortgage  of  an  Equitable  Estate. 

In  England  the  doctrine  that  a  mortgage  vests  the  legal 
title  in  the  mortgagee  is  pushed  to  its  logical  conclusion, 
and  it  is,  therefore,  held  that  all  mortgages  executed  by  the 
mortgagor  after  the  first  are  merely  equitable  mortgages, 
since  he  has  nothing  but  an  equity  to  mortgage.15  This 
doctrine  does  not  prevail  in  any  of  the  states  of  the  Union, 
and  no  distinction  is  made  in  this  respect  between  first  and 
subsequent  mortgages. 


EQUITABLE    LIENS   AEISING    FROM    CONSIDERA- 
TIONS OF  JUSTICE. 

234.  Equitable    liens    •will    arise   -without   express 

agreement  of  the  parties,  based  upon  con- 
siderations of  right  and  justice. 

235.  Such  equitable  liens  •will  arise 

(a)  Where  an  occupant  of  land,  innocently  and 
in  good  faith,  under  a  belief  that  he  is 
the  owner  thereof,  makes  improvements, 
repairs,  or  other  expenditures,  -which  per- 
manently increase  the  value  of  the  prop- 
erty. 

(b)  Where   one  of  two   or  more  joint  owners  of 

property  makes  repairs  and  improvements, 
which  permanently  increase  the  value  of 
the  entire  property. 

(c)  Where  a  tenant  for  life  completes  permanent 

and  beneficial  improvements  to  the  estate, 
which  had  been  commenced  by  the  testator. 

»«  In  re  Luch's  Appeal,  44  Pa.  519;  Edwards'  Bx'rs  v.  Trumbull, 
60  Pa.  509. 

«  Smith,  Eq.  p.  285. 


480  EQUITABLE    LIENS.  (Ch.   18 

Improvements  "by  Occupant. 

At  common  law,  improvements  made  by  an  occupant  of 
land  in  good  faith,  under  the  belief  that  he  was  the  owner, 
passed,  as  part  of  the  freehold,  to  the  lawful  owner,  when  he 
recovered  the  premises  in  ejectment.1  While 'a  person  ex- 
pending money  through  mistake  has  no  claim  in  equity  for 
reimbursement  in  an  action  brought  therefor  against  the  true 
owner,  who  was  ignorant  of  the  expenditure,  and  did  noth- 
ing to  encourage  it,  yet  whenever  it  is  necessary  for  the  own- 
er himself  to  proceed  in  equity  the  principle  that  he  who 
seeks  equity  must  do  equity  is  applied,  and  he  will  only  be 
entitled  to  seek  the  aid  of  the  court  upon  making  compen- 
sation for  the  expenditures.2  Courts  of  law  subsequently 
adopted  the  same  theory,  and  permitted  the  value  of  the  im- 
provements to  be  set  off  in  an  action  for  the  mesne  profits.8 
This  question  is  now  generally  regulated  by  statutes  in  the 
various  states. 

Improvements  by  Joint  Ovmer. 

Where  one  of  two  or  more  joint  owners  of  property  has 
expended  money  in  making  necessary  and  useful  repairs  to 
preserve  the  common  property  from  ruin  and  decay,  he  may 
not  only  compel  his  co-owners  to  contribute  their  share  of 
the  cost  of  such  repairs,  but  he  also  has  an  equitable  lien 
upon  their  interests  in  the  property.4  But  it  has  been  held 
that  no  lien  will  arise  for  permanent  improvements  made 
independent  of  contract,  since  the  other  co-owners  might 
thus  be  deprived  of  their  share  in  the  property  by  the  erec- 
tion of  improvements  for  which  they  are  unable  to  pay.' 

S§  234-235.  i  McCoy  v.  Grandy,  3  Ohio  St  465,  466;  Lunquest  v. 
Ten  Eyck,  40  Iowa,  213. 

*  Neeson  v.  Clnrkson,  4  Hare,  97;    Bright  v.  Boyd,  1  Story,  478. 
Fed.  Oas.  No.  1,875;    Green  v.  Blddle,  8  Wheat.  77,  5  L.  Ed.  547; 
Putnam  v.  Ritchie,  6  Paige  (N.  Y.)  390,  404;  Thomas  v.  Evans,  108 
N.  Y.  614,  12  N.  E.  571. 

»  Murray  v.  Gouverneur,  2  Johns.  CM.  (N.  Y.)  438,  441,  1  Am.  Dec. 
177. 

*  Lake  v.  Craddock,  8  P.  Wms.  158;  Haven  v.  Mehlgarten,  19  III 
95;   Alexander  v.  Ellison,  79  Ky.  148. 

"  Corbett  v.  Laurens,  5  Rich.  Eq.  (S.  0.)  301;  Carver  v.  Coffinan 
109  Ind.  547,  10  N.  E.  567. 


§    236)        ARISING    FROM    CHARGES    BY    WILL    OR   DEED.  481 

Improvements  by  Tenant  for  Life. 

A  tenant  for  life,  who  is  entitled  to  the  possession  of  the 
property  for  an  indefinite  period,  is  presumed  to  make  im- 
provements thereon  for  his  own  personal  enjoyment;  and 
hence  the  remainder-man's  interest  should  not  be  charged 
with  a  lien  for  such  improvements.8  But  if  a  tenant  for  life, 
holding  under  a  will,  expends  money  in  completing  perma- 
nent beneficial  improvements  which  were  begun  by  the  tes- 
tator, he  may  have  a  lien  upon  the  property  benefited  for  the 
amount  so  expended.1 

EQUITABLE    LIENS    ARISING    FROM    CHARGES    BY 
WILL  OR  DEED. 

236.  An  equitable  lien  is  created  where  land  or 
other  property  is  conveyed,  devised,  or  be- 
queathed subject  to  or  charged  -with  the 
payment  of  debts,  legacies,  portions,  or 
annuities  to  third  persons. 

Charges  upon  land  and  other  property  are  sometimes 
made  by  instruments  inter  vivos;  as,  where  land  is  settled 
by  deed  upon  sons  charged  with  the  payment  of  portions  in 
favor  of  daughters.  But  in  this  country  such  charges  are 
much  more  frequently  created  by  will.  Where  property  is 
devised  or  bequeathed  subject  to  the  payment  of  the  testa- 
tor's debts,  or  of  legacies  to  certain  persons  named  in  the 
will,  a  lien  arises  in  favor  of  the  creditors  or  legatees  which 
may  be  enforced  against  the  property  so  disposed  of.  Such 
lien  may  be  enforced  not  only  against  the  devisee,  but  also 
against  the  grantee,  mortgagee,  or  other  subsequent  pur- 
chasers of  the  property,  who  takes  such  property  with  no- 
tice of  the  lien.1 

The  personal  property  of  a  deceased  person  is  the  primary 
fund  for  the  payment  of  debts,  and  the  exclusive  fund,  as 

«  Corbett  v.  Laurens,  5  Rich.  Eq.  (S.  C.)  301,  315;  Taylor  v.  Fos- 
ter's Adm'r,  22  Ohio  St  255. 

7  Dent  v.  Dent,  30  Beav.  363;  Sohier  v.  Eldredge,  103  Mass.  345, 
351. 

§  236.  i  Blauvelt  v.  Van  Winkle,  29  N.  J.  Eq.  Ill;  Donnelly  v. 
Edelen,  40  Md.  11.7. 

EATON.EQ.— 31 


482  EQUITABLE    LLEAB.  (Ch.   18 

between  legatees  and  devisees,  for  the  payment  of  legacies.* 
An  intention  to  overcome  this  rule  must  be  clearly  shown, 
either  by  the  express  language  of  the  will  or  by  implication 
from  the  provisions  thereof,  and  the  circumstances  of  the 
parties  interested  therein.8  As  has  been  said  in  a  leading 
New  York  case  on  this  subject :  "Legacies  may  be  charged 
upon  real  estate  without  express  direction  in  the  will,  if  the 
intention  of  the  testator  so  to  do  can  be  fairly  gathered  from 
all  the  provisions  of  the  will;  and  extraneous  circumstan- 
ces may  be  considered  in  aid  of  the  terms  of  the  will."  * 

The  testator  may  expressly  charge  the  payment  of  his 
debts  or  of  a  legacy  upon  a  particular  piece  of  real  prop- 
erty, or  upon  the  real  property  devised  by  a  residuary  clause. 
Similar  charges  may  be  made  upon  any  particular  fund,  or 
upon  personal  property  bequeathed  by  a  residuary  clause. 
The  language  employed  in  creating  an  express  charge  is  not 
important  if  the  intention  to  charge  the  property  with  the 
payment  of  the  debt  or  legacy  is  manifest  in  the  will.6  The 
rule  in  England,  and  in  some  of  the  courts  of  this  country,  is 
that,  if  the  testator  gives  a  legacy,  and  then  makes  a  general 
residuary  disposition  of  the  whole  estate,  blending  the  realty 
and  personalty  together  in  one  fund,  the  testator's  real,  as 
well  as  his  personal,  estate  will  be  charged  with  the  pay- 
ment of  the  legacies." 

>  Duke  of  Ancaster  v.  Mayer,  1  Brown,  Ch.  454,  1  White  &  T. 
Lead.  Cas.  Eq.  881;  Kitchell  v.  Young,  46  N.  J.  Eq.  506,  19  Atl.  729; 
Newsoin  v.  Thornton,  82  Ala.  402,  8  South.  201,  GO  Am.  Rep.  743; 
Appeal  of  Mann  (Pa.)  14  Atl.  270;  Davidson  v.  Coon,  125  Ind.  497, 
2T>  N.  E.  601;  Allen  v.  Patton,  83  Va.  255,  2  S.  E.  143;  Hogan  v. 
Kavanaugh,  138  N.  Y.  417,  34  N.  E.  292. 

a  Taylor  v.  Dodd,  58  N.  Y.  335;  Heslop  v.  Gatton,  71  111.  528; 
Owens  v.  Claytor,  56  Md.  129;  Stevens  v.  Flower,  46  N.  J.  Eq.  340, 
19  Atl.  777;  Duncan  v.  Wallace,  114  Ind.  109,  170,  16  N.  E.  137. 

«  Hoyt  v.  Hoyt,  85  N.  Y.  142,  146. 

o  An  express  charge  may  be  In  positive  terms;  as,  where  A.  de- 
vises certain  land  to  B.,  subject  to  the  payment  of  a  debt  or  legacy 
to  C.,  or  where  the  testator  directs  that  the  payment  of  all  his  debts 
and  legacies  be  charged  upon  the  real  estate  devised  by  his  will. 
See  Brown  v.  Knapp,  79  N.  Y.  130;  Olmstead  v.  Brush,  27  Conn.  530. 
In  some  of  the  states  it  Is  held  that  a  direction  to  a  devisee  that  ho 
shall  pay  a  certain  debt  or  legacy  does  not,  without  further  language 
showing  the  testator's  Intention,  create  a  charge  on  the  land  de- 
vised. In  re  Cable's  Appeal,  91  Pa.  327;  Allen  v.  Patton,  83  Va. 
2:.:).  2  S.  E.  143. 

«  Grevllle  v.  Browne,  7  H.  L.  Cas.  689;   Stevens  v.  Flower,  46  N. 


§    236)         ARISING    FROM    CHARGES    BY    WILL    OB    DEED.  483 

The  rule  in  New  York  has  been  stated  to  be  as  follows: 
"When  legacies  are  given  generally,  and  the  residue  of  the 
real  and  personal  estate  is  afterwards  devised  in  one  mass, 
and  it  appears  from  other  provisions  on  the  face  of  the  will 
that  the  testator  must  have  contemplated,  from  the  known 
condition  of  his  property,  that  the  personal  estate  would  not 
be  sufficient  to  pay  his  legacies,  and  that  they  could  not  be 
paid  without  resorting  to  the  real  estate  embraced  within  the 
terms  of  the  residuary  clause,  then  an  intention  on  his  part 
will  be  implied  that  the  legacies  shall  be  payable  out  of  such 
real  estate,  as  well  as  out  of  the  personalty;  or,  in  other 
words,  the  residue  of  the  real  estate  will  be  charged  with 
their  payment."  T  A  somewhat  similar  rule  seems  to  have 
been  adopted  in  Connecticut,8  Maryland,9  and  New  Jersey.10 

While  a  charge  of  debts  and  legacies  on  the  land  creates  a 
lien,  the  primary  liability  of  the  personalty  is  not  thereby 
exonerated,  unless  the  intention  of  the  testator  to  exon- 
erate appears  either  by  an  express  'declaration  or  by  clear 
implication.11  Hence,  as  a  rule,  the  creditor  or  legatee  has 

J.  Eq.  340,  19  Atl.  777;  Smith  v.  Fellows,  131  Mass.  20;  Davis'  Ap- 
peal, 83  Pa,  St.  348;  Hutchinson  v.  Gilbert,  86  Tenn.  464,  469,  7  S. 
W.  126;  Lewis  v.  Darling,  16  How.  1,  14  L.  Ed.  819;  Lafferty  v. 
Bank,  76  Mich.  35,  43  N.  W.  34;  Atmore  v.  Walker  (C.  C.)  46  Fed. 
429;  Lapham  v.  Clapp,  10  R.  I.  543;  Jaudon  v.  Ducker,  27  S.  C.  295, 
3  S.  E.  465.  This  rule  has  been  modified  in  New  York.  Brill  v. 
Wright,  112  N.  Y.  129,  19  N.  E.  628;  Briggs  v.  Carroll,  117  N.  Y.  288, 
22  N.  E.  1054;  Hoyt  v.  Hoyt,  85  N.  Y.  142. 

T  Pom.  Eq.  Jur.  §  1247,  note.  And  see  Bevan  v.  Cooper,  72  N.  Y. 
317;  Le  Fevre  v.  Toole,  84  N.  Y.  95;  Hoyt  v.  Hoyt,  85  N.  Y.  142,  147, 
where  Judge  Folger  said:  "It  is  assumed  that  no  man,  in  making 
a  final  disposition  of  his  property,  will  make  a  legacy  save  with  the 
honest,  sober-minded  Intention  that  it  shall  be  paid.  Hence  when, 
from  the  provisions  of  the  will  prior  to  the  gift  of  legacies,  it  is  seen 
that  the  testator  must  have  known  that  he  had  already  so  far 
disposed  of  his  personal  estate  as  that  there  would  not  be  enough 
left  to  pay  the  legacies,  it  is  reasoned  that  the  bare  fact  of  giving 
a  legacy  indicates  an  intention  that  it  shall  be  met  from  the  real 
estate."  See,  also,  Goddard  v.  Pomeroy,  36  Barb.  (N.  Y.)  546;  Mc- 
Corn  v.  McCorn,  100  N.  Y.  511,  3  N.  E.  480. 

» Canfield  v.  Bostwick,  21  Conn.  550;  Grldley  y.  Andrews,  8 
Conn.  1. 

»  White  v.  Kauff  man,  66  Md.  89,  5  Atl.  865. 

10  Corwine  v.  Corwine's  Ex'rs,  23  N.  J.  Eq.  368;  Leigh  v.  Savidge's 
Ex'rs,  14  N.  J.  Eq.  124;  Massaker  v.  Massaker,  13  N.  J.  Eq.  264. 

«  Tower  v.  Lord  Rous,  18  Ves.  132,  138;  Miller  v.  Cooch,  5  Houst 


484  EQUITABLE    LIENS.  (Ch.    16 

three  remedies  for  enforcing  a  debt  or  legacy  charged  on 
the  land:  (i)  He  may  either  enforce  payment  from  the  ex- 
ecutor in  the  usual  course  of  administration ;  or  (2)  he  may 
foreclose  the  lien  against  the  land;  or  (3)  if  the  devise  has 
been  made  conditioned  on  paying  the  debt  or  legacy,  he  may 
maintain  a  common-law  action  against  the  devisee  on  the 
promise  to  pay,  implied  from  the  acceptance  of  the  devise.12 


VENDOR'S  LIEN. 

237.  Where  a  vendor  delivers  possession  of  an  es- 
tate to  a  purchaser  -without  receiving  the 
purchase  money,  equity  gives  the  vendor 
a  lien  on  the  land  for  the  unpaid  purchase 
money,  though  there  was  no  special  agree- 
ment for  that  purpose.1 

This  doctrine  has  been  established  for  many  years  in  the 
courts  of  England ;  the  leading  case,  perhaps,  being  that  of 
Mackreth  v.  Symmons,2  decided  by  Lord  Eldon  in  1808.  In 
considering  the  grounds  upon  which  the  doctrine  is  based, 
Lord  Eldon  said  in  this  case :  "Upon  principle,  without  au- 
thority, I  cannot  doubt  that  it  goes  upon  this  that  a  person 
having  got  the  estate  of  another  shall  not,  as  between  them, 
keep  it,  and  not  pay  the  consideration ;  and  there  is  no  doubt 
that  a  third  person,  having  full  knowledge  that  the  other  got 
the  estate  without  payment,  cannot  maintain  that,  though  a 
court  of  equity  will  not  permit  him  to  keep  it,  he  may  give  it 
to  another  person  without  payment."  By  some  writers  ven- 
dors' liens  are  said  to  have  their  origin  from  the  trust  rela- 
tion which  exists  between  the  vendor  and  vendee,  the  ven- 
dor being  regarded  as  holding  the  title  subject  to  a  trust  for 
the  payment  of  the  purchase  money.*  Others  regard  the 

(Del.)  540,  569;  Hanson  v.  Hanson,  70  Me.  508,  511;  Kirkpatrick  v. 
Rogers,  42  N.  C.  44. 

12  Brown  v.  Knapp,  70  N.  Y.  136;  Lord  v.  Lord,  22  Conn.  595,  602. 

8  237.     i  2  Sugd.  Vend.  671. 

»  IT,  Ves.  320.  1  White  &  T.  Lead.  Caa.  Eq.  355. 

•  2  Story,  Eq.  Jur.  §  1218  et  seq.;  Snell,  Eq.  §  142;  Perry,  Trusts, 
fi  231,  232;  Blackburn  v.  Gregson,  1  Brown,  Ch.  420. 


§  238)  VENDOR'S  LIEN.  485 

vendor's  lien  as  an  equitable  mortgage,4  and  others  as  aris- 
ing from  the  implied  intention  of  the  parties.5 


SAME— UNDER  CONTRACTS  OF  SALE. 

238.  Where  laud  is  sold  under  a  contract  of  sale, 
the  vendor  retains  the  legal  title,  of  -which 
he  cannot  be  devested  except  by  the  pay- 
ment of  the  purchase  money,  which  the  re- 
tention of  the  legal  title  was  intended  to 
secure.1  This  title  is  sometimes  incorrectly 
termed  a  vendor's  lien. 

Many  cases,  both  English  and  American,  have  held  that  a 
vendor's  lien  may  arise  both  before  and  after  a  conveyance 
of  the  title  to  land  to  the  purchaser.2  Before  conveyance, 
under  an  agreement  to  sell,  the  legal  title  remains  in  the  ven- 
dor. The  vendee  cannot  prejudice  this  title,  or  by  any  act 
destroy  its  validity,  except  by  paying  the  purchase  money 
according  to  the  terms  of  agreement.  The  vendor  retains 
the  legal  title  to  secure  the  payment  of  the  purchase  price. 
This  title  is  much  more  efficacious  as  a  security  than  a  mere 
lien  would  be.  It  has  been  frequently  said  that,  when  a  con- 
tract is  consummated  for  the  sale  and  purchase  of  real  prop- 
erty, and  the  relation  of  vendor  and  vendee  is  constituted, 

*  Adams,  Eq.  127;    Wilson  v.  Davisson,  2  Rob.  (Va.)  384,  404. 

»  In  Kauffelt  v.  Bower,  7  Serg.  &  R.  (Pa.)  64,  76,  10  Am.  Dec.  428, 
Chief  Justice  Gibson  repudiates  this  view  as  follows:  "The  impli- 
cation that  there  is  an  intention  to  reserve  a  lien  for  the  purchase 
money  in  all  cases  where  the  parties  do  not  by  express  acts  evince 
a  contrary  Intention  is  in  almost  every  case  inconsistent  with  the 
truth  of  the  facts,  and  in  all  instances,  without  exception,  in  con- 
tradiction of  the  express  terms  of  the  contract,  which  purports  to 
be  a  conveyance  of  everything  that  can  pass."  In  Ahrend  v.  Odi- 
orne,  118  Mass.  261,  19  Am.  Dec.  449,  Chief  Justice  Gray  bases  the 
doctrine  on  the  fact  that,  by  the  law  of  England,  real  estate  could 
not  be  taken  in  execution  for  debt,  except  to  a  limited  extent,  and 
that,  therefore,  the  court  of  chancery  interfered  in  favor  of  the 
vendor. 

§  238.     i  Beach,  Mod.  Eq.  Jur.  §  298. 

z  Dixon  v.  Gayfere,  1  De  Gex  &  J.  655;  Weare  v.  Linnell,  29  Mich. 
224;  Hill  v.  Grigsby,  32  Cal.  55;  Haughwout  v.  Murphy,  22  X.  J. 
Eq.  531;  Neel  v.  Clay,  48  Ala.  252;  Sykes  v.  Betts,  87  Ala.  537,  6 
South.  428;  Williams  v.  Simmons,  79  Ga.  649,  7  S.  E.  133. 


EQUITABLE    LIENS.  (Ch.    18 

the  vendor  becomes  a  constructive  trustee  for  the  vendee.8 
In  equity  the  vendor  becomes  by  equitable  conversion  the 
owner  of  the  purchase  money,  of  which  the  vendee  is  his  trus- 
tee.4 This  interest  is  personal  property,  and  passes  upon 
his  death  to  his  personal  representatives.  The  vendee  is,  in 
equity,  the  real  and  beneficial  owner  of  the  land;  and  his 
interest  therein  under  the  contract  will  descend  as  real  prop- 
erty to  his  heirs. 

This  co-called  vendor's  lien  can  be  nothing  more  than  the 
right  of  the  vendor  to  enforce  his  claim  for  the  purchase 
money,  out  of  the  vendee's  equitable  interest  in  the  property 
sold,  by  means  of  a  suit  in  equity  to  compel  the  payment  of 
such  purchase  money  within  the  time  prescribed  in  the  con- 
tract, or  else  be  barred  of  all  his  rights  thereunder.8 


SAME— ARISING  AFTER  CONVEYANCE  OF  LAND. 

239.  In  England  and  in  many  of  the  states  in  this 
country  the  grantor  of  land,  -who  has  sold, 
conveyed,  and  delivered  possession  to  the 
grantee,  retains  an  equitable  lien  upon  the 
land  for  the  unpaid  purchase  money,  al- 
though there  is  no  distinct  agreement  to  that 
effect,  and  he  has  taken  no  separate  security 
for  it,  and  even  though  the  deed  recites  that 
the  consideration  has  been  fully  paid.1 

This  lien  has  been  recognized  in  the  courts  of  equity  in 
England  from  an  early  period.  In  the  case  of  Chapman  v. 
Tanner  2  such  a  lien  was  allowed,  based  upon  the  ground 
that  it  is  "natural  equity  that  the  land  should  stand  charged 
with  so  much  of  the  purchase  money  as  was  not  paid,  and 
that  without  any  special  agreement  for  the  purpose." 

In  this  country  vendors'  liens  have  been  recognized  by  the 

«  Shaw  v.  Foeter,  L.  R.  5  H.  L.  321,  338,  349,  356;  Lysaght  v.  Ed- 
wards, 2  Ch.  Dlv.  499,  506,  507.  '  And  see  ante,  p.  484. 

*  See  Conversion  and  Reconversion,  ante,  p.  223. 

•  Pom.  Eq.  Jur.  §§  1261,  1202. 

|  239.     i  Pom.  Eq.  Jur.  S  124ft. 
»  (1684)  1  Vero.  2tt7. 


§  239)  VENDOR'S  LIEN.  487 

courts  of  Alabama,3  Arkansas,4  California,5  Colorado,"  Dis- 
trict of  Columbia,7  Florida,8  Illinois,9  Indiana,10  Iowa,11 
Kentucky,12  Louisiana,18  Maryland,14  Michigan,18  Minne- 
sota,18 Mississippi,17  Missouri,18  New  Jersey,19  New  York,20 
North  and  South  Dakota,21  Ohio,22  Oregon,28  Rhode  Is- 
land,24 Tennessee,26  Texas,28  and  Wisconsin.27  In  Geor- 

8  Woodall  v.  Kelly,  85  Ala.  368,  5  South.  164,  7  Am.  St.  Rep.  57; 
Jones  v.  Lockard,  89  Ala.  575,  8  South.  103. 

«  Springfield  &  M.  R.  Co.  v.  Stewart,  51  Ark.  285,  10  S.  W.  767. 

o  Civ.  Code,  §  3046;  Avery  v.  Clark,  87  CaL  619,  25  Pac.  919,  22 
Am.  St.  Rep.  272. 

«  Francis  v.  Wells,  2  Colo.  660. 

f  Ford  v.  Smith,  1  McArthur,  592. 

•  Bradford  v.  Marvin,  2  Fla.  463. 

»  Dyer  v.  Martin.  4  Scam.  146;  Andrus  v.  Coleman,  82  111.  26,  25 
Am.  ttep.  289;  Gruhn  v.  Richardson,  128  111.  178,  21  N.  E.  18. 

10  Lagow  v.  BadolLet,  1  Blackf.  416,  12  Am.  Dec.  258;    Fouch  v. 
Wilson,  60  Ind.  64,  28  Am.  Rep.  651;   Brower  v.  Witmeyer,  121  Ind. 
83,  22  N.  E.  975. 

11  Grapengether  v.   Fejervary,   9   Iowa,   163,   74  Am.   Dec.   336; 
Kendrick  v.  Eggleston,  56  Iowa,  128,  8  N.  W.  786,  41  Am.  Rep.  90; 
Ericrkson  v.  Smith,  79  Iowa,  374,  44  N.  W.  681. 

12  Fowler  v.  Rust's  Heirs,  2  A.  K.  Marsh.  294;   Brown  v.  Ferrell, 
83  Ky.  417. 

13  Pedesclaux  v.  Legare,  32  La.  Ann.  380. 

i*  Pub.  Gen.  Laws  1888,  art.  16,  §  93;  Moreton  v.  Harrison,  1 
Bland,  491;  Ringgold  v.  Bryan,  3  Md.  Ch.  488;  Baltimore  &  L.  T.  Co. 
v.  Moale,  71  Md.  355,  18  Atl.  658. 

IB  Converse  v.  Blumrich,  14  Mich.  109,  90  Am.  Dec.  230;  Richards 
v.  Lumber  Co.,  74  Mich.  57,  41  N.  W.  860. 

is  Selby  v.  Stanley,  4  Minn.  65  (Gil.  34);  Peters  v.  Tunell,  43  Minn. 
473,  45  N.  W.  867,  19  Am.  St.  Rep.  252. 

IT  Dunlap  v.  Burnett,  5  Smedes  &  M.  702,  45  Am.  Dec.  269;  Lissa 
v.  Posey,  04  Miss.  352,  1  South.  500. 

is  Mr-Knight  v.  Brady,  2  Mo.  110;  Christy  v.  McKee,  94  Mo.  241, 
6  S.  W.  656.  , 

i"  Vaudoren  v.  Todd,  3  N.  J.  Eq.  397;  Acton  v.  Waddlngton,  46  N. 
J.  Eq.  16,  18  Atl.  356. 

20  Champion  v.  Brown,  6  Johns,  Ch.  398,  402,  10  Am.  Dec.  343) 
Chase  v.  Peck,  21  N.  Y.  581. 

21  Civ.  Code,  §  1801. 

22  Tiernan  v.  Beam,  2  Ohio,  383,  15  Am.  Dec.  557;  Anketel  v.  Con- 
verse, 17  Ohio  St.  11,  91  Am.  Dec.  115. 

23  Gee  v.  McMillan,  14  Or.  208,  12  Pac.  417,  58  Am.  Rep.  315. 
«*  Kent  v.  Gerhard,  12  R.  I.  92.  34  Am.  Rep.  612. 

2B  Eskridge  v.  McClure,  2  Yerg.  (Tenn.)  86;  Cate  v.  Cate,  87  Tenn. 
41.  9  S.  W.  231. 

2«  Briscoe  v.  Bronaugh,  1  Tex.  326.  46  Am.  Dec.  108;    White  v. 


See  foot  note  27  on  following  page. 


488  EQUITABLE    LIENS.  (Ch.   18 

gia,28  Vermont,29  Virginia,30  and  West  Virginia  31  they  have 
been  abrogated  by  legislation;  while  in  Kansas,82  Maine,38 
Massachusetts,84  Nebraska,85  North  Carolina,38  Pennsyl- 
vania,a:  and  South  Carolina  8(J  they  have  been  rejected  as 
opposed  to  public  policy,  which  requires  all  matters  affect- 
ing land  titles  to  be  made  a  matter  of  record. 

The  vendor's  lien  is  not  permitted  as  a  security  for  any 
other  indebtedness  than  the  unpaid  purchase  money.  A 
fixed  and  certain  debt  for  the  purchase  price  of  land  is  es- 
sential to  the  existence  of  a  vendor's  lien.  So,  when  a  sale 
of  both  real  and  personal  property  is  made  for  a  gross  sum, 
the  vendor's  lien  does  not  exist,  because  the  court  cannot  ac- 
curately ascertain  and  define  the  amount  of  the  charge  to  be 
imposed  on  the  land,  and  enforced  out  of  it.80  And  it  has 
also  been  held  that,  if  the  consideration  is  something  other 
than  money, — as  an  agreement  to  support  the  grantor  dur- 
ing life,40  or  the  delivery  of  a  specified  quantity  of  cotton,41 
— no  lien  exists. 

In  the  next  place,  the  lien  will  be  enforced  as  against  the 
vendee  and  all  persons  claiming  under  him,  except  bona  fide 

Downs,  40  Tex.  225;  Howe  v.  Harding,  76  Tex.  17,  13  S.  W.  41,  18 
Am.  St  Rep.  17. 

"  Tobey  v.  McAllister,  9  Wis.  465;  Evans  v.  Enloe,  70  Wis.  345, 
34  N.  W.  918,  and  36  N.  W.  22. 

as  Code   1882,  §  1997. 

te  Gen.  St  1862,  c.  65,  §  33. 

«o  Code  1873,  c.  115,  §  1. 

«i  Code  1870,  c.  75,  §  1. 

•2  Simpson  v.  Mundee,  3  Kan.  172;  Greeno  v.  Barnard,  18  Kan. 
618. 

««  Philbrook  v.  Delano,  29  Me.  410,  415. 

««  Ahrend  v.  Odiorne,  118  Mass.  261. 

•  »  Edminster  v.  Higglns,  6  Neb.  265. 

««  White  v.  Jones,  92  N.  O.  388;  Moore  r.  Tngram,  91  N.  C.  376; 
Peck  v.  Culberson,  104  N.  C.  426,  10  S.  E.  511. 

»T  Kauffelt  v.  Bower,  7  Serg.  &  R.  64,  10  Am.  Dec.  428;  HIester  v. 
Green.  48  Pa,  96,  86  Am.  Dec.  569;  Strauss'  Appeal,  49  Pa,  353. 

«•  Wragg  v.  Comptroller  General,  2  Desaus.  Eq.  509,  520. 

»•  Erickson  v.  Smith,  79  Iowa,  374,  44  N.  W.  681;  Peters  v.  Tunell, 
43  Minn.  473,  45  N.  W.  867,  19  Am.  St  Rep.  252;  Alexander  v. 
Hooks,  84  Ala.  605,  4  South.  417;  Stringfellow  v.  I  vie,  73  Ala.  209, 
214. 

«o  Peters  v.  Tunell,  43  Minn.  473,  45  N.  W.  867.  19  Am.  St  Rep. 
252. 

«i  Harris  v.  Hanie,  37  Ark.  348. 


§  239)  VENDOR'S  LIEN.  489 

purchasers  for  value,  without  notice.42  A  volunteer,  there- 
fore, takes  subject  to  the  lien,  though  he  had  no  notice ;  and 
so  does  a  purchaser  for  value  with  notice.43 

There  is  a  direct  conflict  of  opinion  in  American  courts  as 
to  whether  a  vendor's  lien  after  conveyance  is  a  prior  lien  to 
that  of  a  subsequent  judgment  creditor  without  notice.  The 
weight  of  authority,  founded  on  better  principle,  favors  the 
precedence  of  the  subsequent  judgment  lien.44 

By  the  weight  of  authority  in  the  United  States,  a  ven 
dor's  lien  is  not  assignable,  but  is  personal  to  the  grantoi 
himself,45  though  in  England  48  and  some  of  the  states  the 
rule  is  otherwise.47 

Waiver  of  Lien. 

The  fact  that  the  conveyance  recites  payment  of  the  con- 
sideration, or  that  a  receipt  for  it  is  indorsed  thereon,  does 
not  defeat  the  lien  if  in  reality  the  purchase  price  is  unpaid.48 

*a  Walker  v.  Preswick,  2  Ves.  Sr.  622;  Cator  v.  Earl  of  Pembroke, 
1  Brown,  Ch.  302;  Christopher  v.  Christopher,  64  Md,  583,  3  Atl.  296; 
Crowe  v.  Colbeth,  63  Wis.  643,  24  N.  W.  478;  Graves  v.  Coutant,  31 
N.  J.  Eq.  763;  Edmonson  v.  Phillips,  73  Mo.  57. 

4a  Christopher  v.  Christopher,  64  Md.  583,  3  Atl.  296;  Beal  v.  Har- 
rington, 116  111.  113,  4  N.  E.  664. 

44  Allen  v.  Loring,  34  Iowa,  499;    Cook  v.  Banker,  50  N.  Y.  655; 
Robinson  v.  Williams,  22  N.  Y.  380;   Bayley  v.  Greenleaf,  7  Wheat. 
46,  5  L.  Ed.  393;   Webb  v.  Robinson,  14  Ga.  216;  Adams  v.  Buchan- 
an, 49  Mo.  64.     Contra,  see  Dickerson  v.  Carroll,  76  Ala.  377;  Tucker 
v.  Hadley,  52  Miss.  414;   Aldridge  v.  Dunn,  7  Blackf.  (Ind.)  249,  41 
Am.  Dec.  224;  Bowman  v.  Faw,  5  Lea  (Tenn.)  472. 

45  First  Nat.  Bank  v.  Mills  Co.  (C.  O.)  39  Fed.  89,  95;   Carlton  v. 
Buckner,  28  Ark.  66;    Grassland  v.  Powers  (Ark.)  13  S.  W.  722; 
Gruhn  v.  Richardson,  128  111.  178,  21  N.  E.  18;   Payne  v.  Nowell,  41 
La.  Ann.  852,  6  South.  636;   Dixon  v.  Dixon,  1  Md.  Ch.  220;    Ham- 
mond v.  Peyton,  34  Minn.  529,  27  N.  W.  72;    White  v.  Williams,  1 
Paige  (N.  Y.)  502;  Ogle  v.  Ogle,  41  Ohio  St.  359;  Burkhardt  v.  How- 
ard, 14  Or.  39,  12  Pac.  79. 

*«  Dryden  v.  Frost,  3  Mylne  &  C.  670. 

47  Wilkinson  v.  May,  69  Ala.  33;   Jones  v.  Lockard,  89  Ala.  575,  8 
South.  103;    Lowry  v.  Smith,  97  Ind.  466;   Honore's  Ex'r  v.  Bake- 
well,  6  B.  Mon.  (Ky.)  67,  43  Am.  Dec.  147;   Louisiana  Nat.  Bank  v. 
Knapp,  61  Miss.  485;    Sloan  v.  Campbell,  71  Mo.  387,  36  Am.  Rep. 
493;   De  Bruhl  v.  Maas,  54  Tex.  464. 

48  Mackreth  v.  Symmons,  15  Ves.  329,  1  White  &  T.  Lead.  Gas. 
Eq.  447;    Ogden  v.  Thornton,  30  N.  J.  Eq.  569;    Bankhead  v.  Owen, 
60  Ala.  457;    Holman  v.  Patterson,  29  Ark.  357;    Walton  v.  Har- 
groves,  42  Miss.  18,  97  Am.  Dec.  429;  Thompson  y.  Corrle,  57  Md. 
197. 


490  EQUITABLE    LIENS.  (Ch.   18 

Nor  is  the  mere  circumstance  that  the  vendor  has  taken  per- 
sonal security  from  the  vendee — such  as  a  bond,  bill,  or  note 
— conclusive  on  the  vendor's  intention  to  abandon  the  lien. 
To  have  this  effect,  the  bond,  note,  or  bill  must  in  fact  be 
the  consideration  for  which  the  land  was  sold,  and  not  a 
mere  evidence  of  indebtedness.  If  the  bond,  bill,  or  note 
was  in  fact  substituted  for  the  consideration  money,  and  was 
the  thing  bargained  for,  the  lien  does  not  exist.49  So,  also, 
the  lien  will  be  deemed  waived  if  the  vendor  takes  independ- 
ent and  collateral  security  for  the  purchase  price,  such  as 
the  note  of  a  third  person,50  or  a  mortgage  on  land.61 

Express  Reservation  of  Lien. 

In  the  foregoing  classes  of  cases  the  lien  has  been  deemed 
waived  by  courts  of  equity  without  any  agreement  by  the 
parties  as  to  its  existence.  It  has,  however,  become  the 
custom  in  some,  of  the  states  to  expressly  reserve,  in  the  deed 
conveying  the  land,  a  lien  as  security  for  the  unpaid  pur- 
chase money.  Such  a  lien  much  more  nearly  resembles  a 
purchase-money  mortgage  than  the  implied  equitable  ven- 
dor's lien,62  and  is  recognized  and  enforced  in  some. of  the 
states  where  that  lien  is  abrogated,  since  it  is  a  matter  of 
record.6* 

<»  Mackreth  v.  Symmons,  15  Ves.  329,  1  White  &  T.  Lead.  Cas.  Eq. 
447;  Frail  v.  Ellis.  16  Beav.  350;  Kent  v.  Gerhard,  12  R.  I.  92,  34 
Ain.  Rep.  612;  Madden  v.  Barnes,  45  Wis.  135,  30  Am.  Rep.  703: 
Dance  v.  Dance,  50  Md.  435;  Lavender  v.  Abbott,  30  Ark.  172. 

eo  Vail  v.  Foster,  4  N.  Y.  312;  Durette  v.  Brigzs,  47  Mo.  356; 
Walker  v.  Struve,  70  Ala.  167;  Christy  v.  McKee.  94  Mo.  241,  6  S. 
W.  G56;  Springfield  &  M.  R.  Co.  v.  Stewart,  51  Ark.  285,  10  S.  W. 
707. 

»i  Nairn  v.  Prowse,  6  Ves.  752;  Bond  v.  Kent,  2  Vern.  281;  Chi- 
cago &  G.  W.  R.  Land  Co.  v.  Peck,  112  111.  408,  451;  Walker  v. 
Struve,  70  Ala.  167;  Orrick  v.  Durham,  79  Mo.  174;  Tlnsley  v.  Tins- 
ley,  52  Iowa,  14,  2  N.  W.  528. 

52  King  v.  Association.  1  Woods,  386.  Fed.  Cas.  No.  7,811;  Kirk 
v.  Williams  (C.  C.)  24  Fed.  437;  Exchange  &  Deposit  Bank  and  Com- 
mercial Bank  of  Knoxville  v.  Bradley,  15  Lea  (Tenn.)  279;  Collins 
v.  Richart,  14  Bush  (Ky.)  621;  Eichelberger  v.  Gltt,  104  Pa.  64; 
Talieferro  v.  Burnett  37  Ark.  511. 

«  Iliester  v.  Green,  48  Pa.  96;  Yancey  v.  Mauck,  15  Grat.  (Va.) 
800. 


§    240)  ASSIGNMENTS.  491 

CHAPTER  XIX. 

ASSIGNMENTS. 

240.  Assignments  at  Common  Law. 

241-242.  Assignability  of  Choses  in  Action. 

243-244.  Equitable  Assignments— Possibilities  and  Expectancies— 
After-Acquired  Property. 

245.  Order  upon  a  Fund. 

246-247.  Notice  to  Debtor. 

248.  Assignment  Subject  to  Equities. 

ASSIGNMENTS  AT  COMMON  LAW> 

S40.  By  the  ancient  common  law,  the  assignment 
of  choses  in  action,  expectancies,  possibil- 
ities, and  the  like,  was  prohibited,  and  the 
rights  of  the  assignee  in  and  to  the  prop- 
erty assigned  were  not  recognized. 

It  was  said  by  Lord  Coke :  "The  great  wisdom  and  pol- 
icy of  the  sages  and  founders  of  our  law  have  provided  that 
no  possibility,  right,  title,  or  thing  in  action  shall  be  granted 
or  assigned  to  strangers ;  for  that  would  be  the  occasion  of 
multiplying  contentions  and  suits,  of  great  oppression  of  the 
people,  and  the  subversion  of  the  due  and  equal  execution 
of  justice."  x  Sir  Frederick  Pollock,  however,  asserts  that 
the  common-law  rule  was  "a  logical  consequence  of  the 
primitive  view  of  contract  as  creating  a  strictly  personal  ob- 
ligation between  the  creditor  and  the  debtor."  a  From  a 

§  240.     i  Lampet's  Case,  10  Coke,  48. 

2  Pol.  Cont  p.  190.  Many  of  the  later  writers  on  equity  jurispru- 
dence have  denoxmced  the  common  law  as  barbarous  in  this  respect; 
and  so  it  undoubtedly  is  when  viewed  in  the  light  of  modern  social 
conditions.  But  substantial  reasons  of  public  policy  were  probably 
at  the  foundation  of  the  rule.  In  the  Middle  Ages,  in  addition  to 
the  temporal  courts,  there  existed  ecclesiastical  or  spiritual  tribu- 
nals. "The  cleric,  whether  plaintiff  or  defendant,  was  entitled  In 
civil  cases  to  be  heard  before  the  spiritual  courts,  which  were  nat- 
urally partial  in  his  favor,  even  where  not  venal,  so  that  justice 
was  scarce  to  be  obtained.  That  such  in  fact  was  the  experience  is 
shown  by  the  practice  which  grew  up  of  clerks  purchasing  doubtful 


ASSIGNMENTS.  (Ch.   19 

very  early  time  there  was  an  exception  to  this  common-law 
rule  in  favor  of  the  king,  and  an  exception  also  arose  re- 
specting private  persons  in  the  case  of  bills  of  exchange  and 
promissory  notes.8  It  also  appears  that  annuities  could  be 
assigned  under  the  common-law  rule,  where  express  words 
to  that  effect  were  used  in  the  instrument  creating  the  an- 
nuity.4 There  seems  to  be  no  logical  reason  for  excepting 
annuities  from  the  general  rule,  as,  from  their  nature,  they 
are  personal  contracts,  and  therefore  choses  in  action.8  It 
was  probably  thought  that  it  would  be  oppressive  if  this 
species  of  property  was  not  alienable  in  the  same  manner  as 
personal  property  in  possession. 

In  the  course  of  time  courts  of  law  have  come  to  recognize 
the  rights  of  an  assignee  of  a  chose  in  action  to  bring  an  ac- 
tion in  the  name  of  the  assignor,  and  equitable  interference 
became  unnecessary  in  this  class  of  cases.8  It  has  been  said 
that  the  true  meaning  of  the  common-law  rule  was  that  an 
assignee  could  not  bring  an  action  upon  a  nonnegotiable 
chose  in  action  in  his  own  name.  "Courts  of  law  had  long 
recognized  the  essential  validity  of  such  an  assignment  in  a 
large  class  of  cases  by  permitting  the  assignee  who  sued  in 
the  name  of  the  assignor  to  have  entire  control  of  the  ac- 
tion, and  by  treating  him  as  the  only  person  immediately  in- 
terested in  the  recovery.  Indeed,  the  assignment  gave  to 
the  assignee  every  element  and  right  of  property  in  the  de- 
claims from  laymen,  and  then  enforcing  them  before  the  Courts 
Christian,— a  speculative  proceeding,  forbidden,  indeed,  by  the  coun- 
cils, but  too  profitable  to  be  suppressed."  Lea,  History  of  the  In- 
quisition, p.  34.  Such  a  practice  would  justify  Lord  Coke's  lan- 
guage In  relation  to  assignments,  as  tending  to  "the  great  oppres- 
sion of  the  people,  and  the  subversion  of  the  due  and  equal  execu- 
tion of  Justice." 

»  Spence,  Eq.  Jur.  p.  850. 

«  -Maund's  Case,  7  Coke,  2Sb. 

•  2  Spence,  Eq.  Jur.  p.  850. 

•  Do  Pothonies  v.  De  Mattos,  El.,  Bl.  &  El.  4G7;   Master  r.  Miller. 
4  Term   R.  320,  340,  341;   Johnson  v.  Bloodgood,  1  Johns.  Cas.  51,  1 
Am.  Dec.  93;    Hammond  v.  Messenger,  9  Sim.  327;    Keys  v.  Wil- 
liams, 3  Younge  &  C.  Exch.  462,  4G6,  467.     The  mere  fact  that  an 
assignee  of  a  legal  cause  of  action  cannot  sue  in  his  own  name  at 
law  does  not  warrant  a  court  of  equity  in  taking  Jurisdiction. 
Walker  v.  Brooks,  125  Mass.  241;    Hay  ward  v.  Andrews,  106  U.  S. 
<.TJ.  r,75,  1  Sup.  Ct.  544,  27  L.  Ed.  271;    Hagar  v.  Buck,  44  Vt  285, 
200,  8  Am.  Rep.  308. 


£§    241-242)       ASSIGNABILITY    OF    CHOSES    IN    ACTION.  493 

mand  transferred,  except  the  single  one  of  suing  upon  it  in 
his  own  name.  It  was  regarded  as  assets  in  his  hands  and  in 
those  of  his  personal  representatives.  His  rights  were  com- 
pletely protected  against  the  interference  of  the  assignor 
with  an  action  brought  in  the  latter's  name."  7 

The  judicature  acts  in  England  have  changed  the  com- 
mon-law rule,  and  an  absolute  assignment  of  a  chose  in  ac- 
tion is  made  effectual  at  law,  and  the  assignee  may  sue  there- 
on in  his  own  name.8  In  New  York,  and  in  all  the  other 
states  where  the  new  system  of  procedure  has  been  adopted, 
the  real  party  in  interest — which,  of  course,  includes  an  as- 
signee— is  required  to  sue  in  his  own  name.* 

ASSIGNABILITY  OF  CHOSES  IN  ACTION. 

241.  All  choses  in  action  embracing  demands  "which 

are  considered  as  matters  of  property  or 
estate  are  now  assignable  at  law  and  in 
equity.1 

242.  To  determine  whether    a  cause   of  action    is 

assignable  at  law,  the  following  rule  has 
been  formulated :  If  the  cause  of  action 
survives,  and  passes  as  an  asset  to  the  per- 
sonal representatives  of  a  decedent  credit- 
or, or  continues  as  a  liability  against  the 
representatives  of  a  decedent  debtor,  it  is 
assignable  ;  otherwise  not.2 

It  has  always  been  held  at  law  and  in  equity  that  nothing 
is  assignable  which  does  not,  directly  or  indirectly,  involve 
a  property  right.8  Applying  the  rule  as  above  formulated, 
all  contracts  and  rights  of  action  for  their  enforcements, 

1  Pom.  Code  Rem.  §  124. 

»  36  &  37  Viet  c.  66,  §  25,  subsec.  6. 

»  Code  Civ.  Proc.  N.  Y.  §  449. 

§§  241,  242.     i  Hoyt  v.  Thompson,  5  N.  Y.  320,  347. 

2  Pom.  Code  Kern.  §?  147;  Brackett  v.  GrisAVold,  103  N.  Y.  425.  42S, 
9  N.  E.  438;   Stewart  v.  Railway  Co.,  62  Tex.  246;  Dayton  y.  Fargo, 
45  Mich.  153,  7  N.  W.  758. 

*  Dayton  r.  Fargo,  45  Mich.  153,  7  X.  W.  758. 


494  ASSIGNMENTS.  (Ch.    19 

except  contracts  of  a  personal  nature,  involving  personal 
trust  or  confidence,  are  assignable.4  Causes  of  action  aris- 
ing from  torts,  affecting  the  value  of  real  or  personal  prop- 
erty, or  from  any  fraud  or  other  wrong  whereby  an  interest 
or  estate,  either  real  or  personal,  is  injured,  or  in  any  way 
lessened  in  value,  will  survive  the  death  of  the  injured  party, 
and  are  therefore  assignable.6  The  statutory  right  of  action 
for  wrongfully  killing  a  person  is  regarded  as  an  asset  of  his 
estate,  and  is  therefore  assignable ; e  as  is  also  a  cause  of 
action  against  a  railroad  company  for  damages  caused  by 
negligently  running  over  and  killing  cattle,  since  the  injury 
is  one  to  the  estate,  and  not  to  the  person.7  Any  claim  for 
property  fraudulently  taken,  received,  or  withheld  may  be 
assigned,8  and  so  may  a  cause  of  action  for  fraudulent  rep- 
resentations concerning  the  value  of  certain  property.9 
Where  the  damages  are  confined  to  the  body  and  feelings  of 
the  person  injured,  a  cause  of  action  therefor  cannot  be  as- 
signed. It  is  well  settled  that  an  administrator  or  executor 
cannot  recover  upon  a  right  of  action  accruing  to  the  de- 
ceased, where  the  damage  consists  entirely  of  the  personal 
sufferings  of  the  deceased,  whether  mental  or  corporeal. 
Actions  for  breach  of  a  promise  of  marriage,  for  unskillful- 
ness  of  medical  practitioners  contrary  to  their  implied  un- 
dertaking, or  the  imprisonment  of  a  person  on  account  of 
the  neglect  of  his  attorney  to  perform  his  professional  en- 
gagements, fall  under  this  head,  being  considered  virtually 
actions  for  injuries  to  the  person.10 

*  Pom.  Code   Rem.  §  147:   Bliss.  Code  PL  47. 

«  Hoyt  v.  Thompson,  5  N.  Y.  320;  Tyson  v.  McGuIneas,  25  Wis.  656. 

«  Quinn  v.  Moore,  15  N.  Y.  432. 

T  G.  H.  &  S.  A.  R.  Co.  v.  Freeman,  57  Tex.  156. 

•  Hoyt  v.  Thompson,  5  N.  Y.  320;    McKee  v.  Judd,  12  N.  Y.  622, 
64  Am.  Dec.  515;    Sherman  v.  Elder,  24  N.  Y.  381;    Rlchtmeyer  v. 
Remsen,  38  N.  Y.  206;  Chouteau  v.  Boughton,  100  Mo.  406,  13  S.  W. 
877;   Lazard  v.  Wheeler,  22  Cal.  139. 

o  Garland  v.  Harrington,  51  N.  H.  409;  Edwards  v.  Parkhurst.  21 
Vt.  472;  Rice  -v.  Stone,  1  Allen  (Mass.)  566;  Grant  v.  Ludlow's 
Adra'r,  8  Ohio  St.  1,  37. 

10  Zabriskle  v.  Smith,  13  N.  Y.  322,  333,  64  Am.  Dec.  556,  per  De- 
nlo,  .1.  And  see  People  v.  Tloga  Common  Pleas,  19  Wend.  (N.  Y.) 
73:  Comegys  v.  Vasse,  1  Pet.  213,  7  L.  Ed.  108;  Tyson  v.  McGuIneas, 
2.",  Wis.  65(5;  Byxble  v.  Wood,  24  N7.  Y.  607.  If  only  personal  rela- 
tions are  nfTeoted  by  fraud  or  deceit,  a  cause  of  action  therefor  Is 
not  assignable.  Higgins  T.  Breen,  9  Mo.  497.  A  right  of  action  for 


§§    241-242)       ASSIGNABILITY    OF    CHOSES    IN    ACTION.  495 

There  are  certain  assignments  which  are  void,  both  at  law 
and  in  equity,  on  grounds  of  public  policy.  In  this  class  are 
included  assignments  which  partake  of  the  nature  of  cham- 
perty and  maintenance.11  And  in  England  the  salaries  of 
public  officers  cannot  be  assigned,  on  the  theory  that  they 
are  given  to  maintain  the  dignity  of  their  offices,  and  to  se- 
cure the  proper  discharge  of  the  duties  thereof.12  In  sev- 
eral recent  American  cases  it  has  also  been  held  that  an  as- 
signment of  the  salary  of  a  public  officer  not  yet  due  is 
void; 1S  and  an  act  of  congress  prohibits  the  assignment  of 
pensions  issued  to  veterans  of  the  Civil  War.14 

In  many  of  the  states  special  statutes  have  been  passed, 
defining  what  choses  in  action  may  be  assigned.  Thus,  in 
New  York,  any  claim  or  demand  may  be  transferred,  except 
for  personal  injury  or  breach  of  promise  to  marry,  or  found- 
ed on  a  grant  void  by  statute,  or  where  the  transfer  is  for- 
bidden by  statute,  or  is  contrary  to  public  policy.15 

Equitable  Jurisdiction  in  Favor  of  Assignee. 

In  those  states  in  which  the  right  of  an  assignee  to  sue  in 
his  own  name  upon  the  claim  assigned  to  him  is  not  recog- 
nized, the  question  sometimes  arises  as  to  when  equity  will 
intervene  to  aid  the  assignee  in  the  enforcement  of  his  claim. 
As  a  general  rule,  equity  will  not  entertain  a  suit  by  an  as- 
signee of  a  legal  chose  in  action,  for  the  only  reason  that  he 
cannot  sue  at  law  in  his  own  name.  But,  if  it  appears  that 

personal  Injuries  does  not  survive  to  an  executor;  and  here  Is 
found  the  proper  test  of  the  assignability  of  a  chose  In  action.  Pur- 
ple v.  Railroad  Co.,  4  Duer  (N.  Y.)  74;  Rice  v.  Stone,  1  Allen  (Mass.) 
566;  nor  for  false  imprisonment,  Moonan  v.  Orton,  34  Wls.  259,  17 
Am.  Rep.  441. 

11  Bradla-ugh  v.  Newdegate,  11  Q.  B.  Dlv.  1;    Dorwin  v.  Smith,  35 
Vt   69;    Thurston   v.   Percival,   1    Pick.    (Mass.)   415;    Coquillard's 
Adm'r  v.  Bears,  21  Ind.  479,  83  Am.  Dec.  362;    Martin  v.  Veeder,  20 
Wis.  466. 

12  Davis  v.  Duke  of  Marlborough,  1  Swanst  74;   Arbuthnot  v. 
Norton,  5  Moore,  P.  C.  219;  Wells  v.  Foster,  8  Mees.  &  W.  149. 

is  Bliss  v.  Lawrence,  58  N.  Y.  442,  17  Am.  Rep.  273;  Wayne  Tp. 
v.  Cahill,  49  N.  J.  Law,  144,  148,  6  Atl.  621;  Field  v.  Chipley,  79  Ky. 
260,  42  Am.  Rep.  215;  Bangs  v.  Dunn,  66  Cal.  72,  4  Pac.  963;  Schloss 
v.  Hewlett,  81  Ala.  266,  1  South.  263;  Shannon  v.  Bruner  (C.  C.)  36 
Fed.  147;  Clark,  Cont.  419. 

i*  Act  Feb.  28,  1883. 

»  Code  Civ.  Proc.  §  1910. 


4DG  ASSIGNMENTS.  (Ch.    10 

an  assignor  prevents  the  bringing  of  such  an  action  in  his 
name,  or  that  an  action  so  brought  would  not  afford  the  as- 
signee an  adequate  remedy,  he  will  be  permitted  to  sue  in 
equity.1* 


EQUITABLE    ASSIGNMENTS— POSSIBILITIES    AND 
EXPECTANCIES— AFTER-ACQUIRED   PROPERTY. 

243.  An    assignment  of   a  mere  possibility  or  ex- 

pectancy, based  upon  a  valuable  considera- 
tion, -will  be  enforced  in  equity  whenever 
the  possibility  or  expectancy  becomes  a 
vested  interest  or  possession. 

244.  Equity  vn.ll  uphold  assignments  of  property 

to  be  acquired  in  the  future,  and  -will  en- 
force them  -when  the  property  acquired 
comes  into  existence. 

Even  after  courts  of  law  recognized  the  validity  of  assign- 
ments of  choses  in  action,  the  assignment  of  possibilities  or 
expectancies  was  enforced  only  in  equity.  Thus,  the  assign- 
ment of  a  vested  remainder,  made  by  the  remainder-man 
during  the  lifetime  of  the  life  tenant,  being  of  a  mere  pos- 
sibility, though  not  good  at  law,  was  held  valid  in  equity.1 
Whatever  doubts  may  have  formerly  existed  on  this  subject, 
the  better  opinion  now  is  that  courts  of  equity  will  support 
assignments,  not  only  of  choses  in  action,  but  of  contingent 
interests  and  expectations,  and  of  things  which  have  no  pres- 
ent actual  existence,  but  vest  in  possibility  only,  provided 

i«  Chicago  &  N.  W.  Ry.  Co.  v.  Nichols,  57  111.  4G4;  Thompson  v. 
Railroad  Co.,  (!  Wall.  134.  18  L.  Ed.  7<;~>;  Walker  v.  Brooks,  12T>  Mass. 
241.  And  see  Hammond  v.  Messenger,  9  Sim.  327. 

§5  243,  244.  i  Warmstrey  v.  Tanfield,  1  Ch.  R.  29,  2  White  &  T. 
Lead.  Cos.  Eq.  794.  Other  assignment  of  expectancies  held  valid  In 
equity:  Of  heirs  at  law,  Ilobson  v.  Trevor,  2  P.  Wms.  191;  Stover 
v.  Kycleshimer,  4  Abb.  Dec.  (N.  Y.)  302;  of  next  of  kin  of  living 
ptT-ioii,  Hlnde  v.  Blake,  3  Boav.  2".";  of  Interest  which  a  person  ex- 
pi'i-ts  under  the  will  of  a  living  person,  Beckley  v.  Newland,  2  P. 
Wms.  182;  of  share  to  which  a  person  may  become  entitled  under 
an  appointment,  Musprat  v.  Gordon,  1  Austr.  34, 


£§    243-244)  EQUITABLE   ASSIGNMENTS.  497 

the  agreements  are  fairly  entered  into,  and  it  would  not  be 
against  public  policy  to  uphold  them.2 

Recent  statutes  in  England  authorize  the  assignment  at 
law  of  executory  and  future  possibilities  when  coupled  with 
an  interest  in  real  estate,8  and  even  broader  statutes  have 
been  enacted  in  some  of  the  states,  authorizing  the  assign- 
ment at  law  of  possibilities  coupled  with  an  interest  in  either 
real  or  personal  property.4  These  statutes  leave  untouched 
the  assignment  of  possibilities  or  expectancies  not  coupled 
with  an  interest  in  property,  and  hence  such  an  assignment  is 
still  enforced  only  in  equity. 

Assignment  of  After- Acquired  Property* 

At  common  law  the  assignment  of  property  to  be  acquired 
in  the  future  was  void ;  as,  for  an  example,  the  future  freights, 
earnings,  and  profits  of  a  ship.6  No  legal  property  can  be 
passed  by  such  an  assignment  without  some  new  act  of  the 
assignor  after  the  property  is  acquired.  The  rule  is  differ- 
ent in  equity.  An  assignment,  sale,  or  mortgage  of  per- 
sonal property  to  be  acquired  in  futuro,  if  made  for  a  val- 
uable consideration,  and  not  against  public  policy,  will  be 
upheld  in  equity.  Such  a  transaction  vests  in  the  assignee, 
purchaser,  or  mortgagee  an  equitable  ownership  in  the  per- 
sonal property  transferred,  to  take  effect  and  attach  as  soon 
as  such  property  comes  into  existence.6  Such  ownership 
will  be  protected  in  equity  at  the  suit  of  the  equitable  own- 
er. An  interesting  and  important  case  on  this  subject  is 
that  of  Holroyd  v.  Marshall,7  in  which  it  appears  that  ma- 
chinery in  a  mill  was  assigned  in  trust  to  secure  a  debt  due 
to  the  plaintiff,  and  the  contract  provided  that  all  other  ma- 
chinery placed  in  the  mill  during  the  time  of  the  trust  should 
vest  in  the  trustee  for  the  same  purpose.  New  machinery 
was  purchased,  and  placed  in  the  mill,  notice  of  which  was 

*  Field  v.  Mayor,  etc.,  6  N.  Y.  179,  57  Am.  Dec.  435.    And  see  Ken- 
yon  v.  See,  94  N.  Y.  563;    Patterson  v.  Caldwell,  124  Pa.  455,  17 
Atl.  18. 

»8  &  9  Viet.  c.  106,  §  6. 

«  Civ.  Code  Cal.  §§  693,  699,  700,  1045,  1046. 

•  Robinson  v.  Macdonnell,  5  Maule  &  S.  228. 

«  Mitchell  v.  Winslow,  2  Story,  630,  Fed.  Cas.  No.  9,673;  Patter- 
son v.  Caldwell,  124  Pa.  455, 17  AtL  18;  Kimball  Y.  Safford,  78  Iowa, 
65,  42  N.  W.  583,  4  L.  R.  A,  398. 

1 10  H.  L.  Cas.  191. 
EATON,E<J.— 32 


4U8  ASSIGNMENTS.  (Ch.   19 

given  to  the  plaintiff.  Before  the  plaintiff  took  possession 
under  the  contract,  creditprs  of  the  owner  levied  on  the  ma- 
chinery under  an  execution  against  him.  It  was  held  that 
the  plaintiff's  equitable  title  was  superior  to  the  subsequent 
legal  claim  of  the  judgment  creditors.  Lord  Westbury,  in 
his  opinion  in  this  case,  says :  "It  is  quite  true  that  a  deed 
which  professes  to  convey  property  which  is  not  in  existence 
at  the  time  is,  as  a  conveyance,  void  at  law,  simply  because 
there  is  nothing  to  convey.  So,  in  equity,  a  contract  which 
engages  to  transfer  property  which  is  not  in  existence  can- 
not operate  as  an  immediate  alienation,  merely  because  there 
is  nothing  to  transfer.  But  if  a  vendor  or  mortgagor  agrees 
to  sell  or  mortgage  property,  real  or  personal,  of  which  he 
is  not  possessed  at  the  time,  and  he  receives  the  consider- 
ation for  the  contract,  and  afterwards  becomes  possessed  of 
property  answering  the  description  in  the  contract,  there  is 
no  doubt  that  a  court  of  equity  would  compel  him  to  per- 
form the  contract,  and  that  the  contract  would,  in  equity, 
transfer  the  beneficial  interest  to  the  mortgagee  or  pur- 
chaser immediately  on  the  property  being  acquired."  *  It 
would  seem  that  the  assignee  has  an  equitable  title  in  the 
property  to  be  acquired,  dating  from  the  time  of  the  assign- 
ment, and  instantly  upon  the  acquisition  of  such  property  the 
assignor  holds'  it  in  trust  for  the  assignee,  whose  title  re- 
quires no  act  on  his  part  to  perfect  it.  The  enforcement  of 
such  contracts  seems  to  have  been  based,  in  the  case  above 
referred  to,  and  in  other  cases  on  the  same  subject,  on  the 
ground  that  the  assignee  is  entitled  to  have  specific  perform- 
ance of  the  contract  to  assign  as  soon  as  the  property  comes 
into  existence  in  the  hands  of  the  assignor.  Mr.  Pomeroy 
does  not  accept  this  view  of  the  grounds  for  the  interference 
of  equity  in  such  cases,  and  says:  "In  my  opinion,  it  fails 
to  wholly  explain  the  equitable  doctrine  and  jurisdiction, 


•  We  have  Inserted  a  somewhat  lengthy  reference  to  this  case 
because  of  the  fact  that  It  so  clearly  illustrates  the  principle  of  the 
text.  There  are  many  other  cases  In  which  the  ruling  of  Lord  West- 
bury  has  been  followed  and  cited  with  approval.  Coombe  v.  Carter, 
86  Ch.  DIv.  109.— where  a  mortgage  was  given  upon  all  moneys  to 
which  the  mortgagor  might  become  entitled  during  the  security  by 
will,  settlement,  etc.,  and  It  was  held  that  the  share  of  the  mort- 
gagor under  a  residuary  clause  in  a  will  was  subject  to  the  mort- 
gage. And  see  Tailby  v.  Official  Receiver,  13  App.  Cas.  523. 


§§    243-244)  EQUITABLE    ASSIGNMENTS.  499 

since  transfers  of  personal  property  to  be  acquired  in  the  fu- 
ture are  constantly  enforced  under  the  operation  of  this  doc- 
trine, where  a  court  of  equity  would  hardly  have  decreed  the 
specific  performance  of  the  contract  if  it  had  been  confined 
to  property  then  in  the  ownership  and  possession  of  the  ven- 
dor or  assignor."  9  It  must  be  admitted  that  the  right  of 
the  assignee  is  something  more  than  the  right  to  the  specific 
performance  of  an  executory  contract.  There  is  also  an 
equitable  title  vested  in  the  assignee  which  will  become  ef- 
fectual when  the  property  assigned  comes  into  the  posses- 
sion of  the  assignor. 

The  doctrine  as  declared  in  the  case  of  Holroyd  v.  Mar- 
shall is  fairly  well  established  in  the  courts  of  this  country. 
A  lease  containing  a  clause  giving  the  lessor  a  lien  as  se- 
curity for  the  rent  "on  all  goods,  implements,  stock,  fixtures, 
tools,  and  other  personal  property  which  may  be  put  on  said 
premises"  was  sustained  upon  the  doctrine  laid  down  in  the 
case  above  referred  to.10  Assignments  of  future  cargoes  of 
ships  ll  and  future  patent  rights  12  have  also  been  sustained. 
In  a  recent  New  York  case  it  was  held  that  a  chattel  mort- 
gage on  property  to  be  acquired  in  the  future,  while  re- 
garded in  equity  as  an  executory  agreement  to  give  a  lien 
when  the  property  comes  into  existence,  cannot  be  made  an 
actual  and  effectual  lien  as  against  creditors  without  some 
further  intervening  act.18  This  case  was  decided  under  a 
statute  requiring  a  filing  of  the  mortgage  as  a  substitute 
for  "an  immediate  delivery,"  or  "an  actual  and  continued 
change  of  possession  of  the  thing  mortgaged,"  and  the 
court  considered  that  this  statute  excluded  the  idea  of  a 
chattel  mortgage  upon  nonexistent  things. 

Future  wages,  to  be  earned  under  a  subsisting  contract  of 
employment,  ^are  assignable ; 14  but  the  authorities  vary  as 

•  Pom.  Eq.  Jur.  §  1288. 

»o  McCaffrey  v.  Woodin,  65  N.  Y.  459,  22  Am.  Rep.  614. 

11  Lindsay  v.  Gibbs,  22  Beav.  522;    Mitchell  v.  Winslow,  2  Story, 
630,  Fed.  Cas.  No.  9,673. 

12  Printing  &  Numerical  Registering  Co.  v.  Sampson,  L.  R.  19  Eq. 
462.     Contra,  Regan  Vapor-Engine  Co.  v.  Gas-Engine  Co.,  1  C.  C.  A. 
169,  49  Fed.  68. 

«  Rochester  Distilling  Co.  v.  Rasey,  142  N.  Y.  570,  37  N.  E.  632. 

i*  Emery  v.  Lawrence,  8  Gush.  (Mass.)  151;  Hartley  v.  Tapley, 
2  Gray  (Mass.)  565;  Field  v.  Mayor,  etc.,  6  N.  Y.  179;  Appeal  of 
Riddlesburg  Coal  &  Iron  Co.,  114  Pa.  58,  6  AtL  381;  Haynes  v. 
Thompson,  80  Me.  125,  13  Atl.  276. 


500  ASSIGNMENTS.  (Ch.   19 

to  whether  such  an  assignment  is  valid  when  there  is  no  sub- 
sisting contract.15 

To  render  an  assignment  of  future-acquired  property  valid 
and  effectual,  there  must  be  no  uncertainty  as  to  the  prop- 
erty intended  to  pass  ; le  and  words  imputing  a  present  trans- 
fer of  property  must  be  employed,  as  distinguished  from  a 
mere  power  to  deal  with  the  property  when  it  is  acquired.17 


SAME— ORDER  UPON  A  FUND. 

245.  An  order  given  by  a  debtor  to  his  cred- 
itor upon  a  third  person  having  funds 
of  the  debtor  in  his  possession,  to  pay  the 
creditor  out  of  such  funds,  will  create  a 
binding  equitable  assignment  of  such  por- 
tion of  such  funds  as  is  specified  in  such 
order.1 

At  common  law  no  action  can  be  maintained  on  a  contract 
unless  there  is  privity  of  contract  between  the  parties  to  the 
action.  So  that,  where  a  person  is  indebted,  or  has  funds  be- 
longing to  another,  who,  by  an  order,  assigns  such  debt  or  a 
portion  of  such  funds  to  a  third  person,  no  action  at  law  will 
lie  to  enforce  such  order,  unless  there  has  been  a  consent  or 
an  acceptance  thereof  by  the  person  upon  whom  it  is  made ; 
because,  without  the  implied  promise  of  such  consent  or  ac- 
ceptance, there  is  no  contractual  relation  upon  which  a  legal 
action  can  be  based.  But  in  equity  the  rule  is  different. 
Equity  recognizes  the  interests  of  the  payee  of  such  an  or- 
der in  the  fund  upon  which  it  is  drawn,  and  will  compel  an 
appropriation  of  such  fund  according  to  the  directions  of  such 
order.  As  was  said  by  Judge  Rapallo :  "There  can  be  no 
doubt  as  to  the  rule  that  when,  for  a  valuable  consideration 
from  the  payee,  an  order  is  drawn  upon  a  third  person,  and 

»»HeId  assignable  in  Edwards  Y.  Peterson,  80  Me.  367,  14  Atl. 
936.  Contra,  Lehigh  Val.  R.  Co.  v.  Woodring,  116  Pa.  513,  9  Atl.  58; 
Mullhall  v.  Quinn,  1  Gray  (Mass.)  106,  61  Am.  Dec.  414. 

»«  Tadman  v.  D'Epineuil,  20  Ch.  Div.  758. 

«  Reeve  v.  Whitmore,  4  De  Gex,  J.  &  S.  1,  16-18. 

I  245.  i  Bum  v.  Carvalho,  4  Mylne  &  C.  702;  Row  v.  Dawson, 
1  Ves.  Sr.  331,  2  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.)  731. 


§    245)  EQUITABLE    ASSIGNMENTS.  601 

made  payable  out  of  a  particular  fund,  then  due  or  to  become 
due  from  him  to  the  drawer,  the  delivery  of  the  order  to  the 
payee  operates  as  an  assignment  pro  tanto  of  the  fund ;  and 
the  drawee  is  bound,  after  notice  of  such  assignment,  to  ap- 
ply the  fund  as  it  accrues  to  the  payment  of  the  order,  and 
to  no  other  purpose ;  and  the  payor  may,  by  action,  compel 
such  application."  2  To  become  effective  as  an  assignment, 
the  order  must  make  an  actual  appropriation  of  the  fund.8 
An  equitable  assignment  cannot  be  based  upon  a  mere  prom- 
ise or  agreement,  either  by  parol  or  in  writing,  to  pay  a  debt 
out  of  a  designated  fund.4  An  order  drawn  generally  on  the 
drawee,  payable  in  the  first  instance  on  the  credit  of  the 
drawer,  and  without  regard  to  the  source  from  which  the 
money  used  for  its  payment  is  obtained,  does. not  operate  as 
an  equitable  assignment,  although  the  drawer  designates  a 
particular  fund  out  of  which  the  drawee  is  subsequently  to 
reimburse  himself  for  the  payment,  or  a  particular  account 
to  which  it  is  to  be  charged.8  An  prdinary  draft,  not  drawn 
on  any  particular  fund,  does  not  operate  as  an  assignment.9 
And  it  seems  well  settled  that  an  unaccepted  check  will  not 
result  in  an  equitable  assignment  of  the  fund  pro  tanto.7 

»  Brill  v.  Tuttle,  81  N.  Y.  454,  457,  37  Am.  Rep.  515;  "Lauer  v. 
Dunn,  115  N.  Y.  405,  22  N.  E.  270;  Bates  v.  Bank,  157  N.  Y.  322,  51 
N.  B.  1033. 

s  Laclede  Bank  v.  Schuler,  120  U.  S.  511,  516,  7  Sup.  Ct  644,  30 
L.  Ed.  704. 

*  Rogers  v.  Hosack's  Ex'rs,  18  Wend.  (N.  Y.)  319;  Christmas  v. 
Russell,  14  Wall.  69,  20  L.  Ed.  762;  Trist  Y.  Child,  21  Wall.  441,  22 
L.  Ed.  623;  Williams  v.  Ingersoll,  89  N.  Y.  508,  518. 

6  Brill  v.  Tuttle,  81  N.  Y.  454,  457,  37  Am.  Rep.  515.     See,  also, 
Ex  parte  Carruthers,  3  De  Gex  &  S.  570;    Kelley  v.  Mayor,  etc.,  4 
Hill  (N.  Y.)  265.    An  order  of  this  kind  is  a  negotiable  bill  of  ex- 
change.    Kelley  v.  Mayor,  etc.,  supra;  Schmittler  v.  Simon,  101  N. 
Y.  554,  560,  5  N.  E.  452,  54  Am.  Rep.  737. 

e  Shand  v.  Du  Buisson,  L.  R.  18  Eq.  283;  Kimball  v.  Donald,  20 
Mo.  577,  64  Am.  Dec.  209;  First  Nat  Bank  v.  Railway  Co.,  52  Iowa, 
378,  3  N.  W.  395,  35  Am.  Rep.  280;  Holbrook  v.  Payne,  151  Mass. 
383,  24  N.  E.  210;  Cashman  v.  Harrison,  90  Cal.  297,  27  Pac.  283; 
Mandeville  v.  Welch,  5  Wheat.  277,  5  L.  Ed.  87;  Grammel  v.  Car- 
mer,  55  Mich.  201,  21  N.  W.  418,  54  Am.  Rep.  363. 

7  Hopkinson  v.  Forster,  L.  R.  19  Eq.  74;    Attorney  General  v.  In- 
surance Co..  71  N.  Y.  325,  27  Am.  Rep.  55;    O'Connor  v.  Bank,  124 
N.  Y.  324,  26  N.  E.  816;    Florence  Min.  Co.  v.  Brown,  124  U.  S.  385, 
8  Sup.  Ct.  531,  31  L.  Ed.  424;    Harrison  v.  Wright,  100  Ind.  515,  58 
Am.  Rep.  805;   National  Bank  of  America  v.  Banking  Co.,  114  111. 


502  ASSIGNMENTS.  (Ch.    19 

This  doctrine  accords  with  the  relations  between  the  parties 
to  the  transaction.  A  check  is  a  request  of  the  depositor  to 
pay  the  whole  or  a  portion  of  the  deposit  to  the  bearer,  or  to 
the  order  of  the  payee.  Until  presented  and  accepted,  it  is 
inchoate.  It  vests  in  the  payee  no  legal  or  equitable  title  or 
interest  in  the  fund.  Before  acceptance  the  drawer  may 
withdraw  his  deposit.  The  bank  owes  no  duty  to  the  holder 
of  a  check  until  it  is  presented  for  payment.8  But  there  may 
be  circumstances  connected  with  the  giving  of  a  check  which 
will  make  the  check  operate  as  an  equitable  assignment  of 
the  fund  upon  which  it  is  drawn;  as  where,  in  addition  to 
the  check,  there  was  an  oral  agreement  between  the  drawer 
and  payee,  by  which  the  former,  for  a  valuable  consideration, 
agreed  to  assign  so  much  of  the  indebtedness  of  the  bank  to 
him  as  was  represented  by  the  check,  and  the  check  was 
given  to  enable  the  payee  to  collect  and  recover  the  portion 
of  the  debt  assigned,  the  agreement  operates  as  an  assign- 
ment, and  is  sufficient  to  vest  in  the  payee  a  title  to  that  por- 
tion of  the  debt.9 

Any  words  which  show  an  intention  to  appropriate  the 
fund  to  the  payee  are,  if  supported  by  a  valuable  consider- 
ation, sufficient  to  effect  a  valid  assignment.  Writing  is  not 
necessary  if  there  is  clear  proof  of  an  oral  charge.10  The 
assignment,  however,  is  not  complete  until  it  has  been  com- 
municated to  the  intended  assignee.  Thus,  a  mere  man- 
date from  a  principal  to  his  agent  to  pay  a  debt  out  of  a  cer- 
tain fund  gives  the  creditor  no  specific  charge  on  that  fund.11 
Until  such  mandate  is  communicated  to  the  creditor,  and  as- 
sented to  by  him,  it  may  be  revoked; ia  but  after  such  com- 
munication the  agent  becomes  the  debtor  of  the  assignee, 
and  the  order  cannot  then  be  countermanded.1' 

483.  2  N.  E.  401;  Hemphlll  v.  Yerkes,  132  Pa.  545,  19  Atl.  342; 
Tease  v.  Landauer,  63  WIs.  20,  22  N.  W.  847,  53  Am.  Rep.  247. 

•  Tyler  v.  Gould,  48  N.  Y.  682,  per  Church,  a  J. 

•  Risley  v.  Bank,  83  N.  Y.  318,  38  Am.  Rep.  421;    Coates  v.  Bank, 
91  N.  Y.  20;   Fourth  St.  Nat.  Bank  v.  Yardley,  165  U.  S.  644,  17  Sup. 
Ct  439,  41  L.  Ed.  855;    First  Nat  Bank  y.  dark,  134  N.  Y.  368,  32 
N.  K.  38,  17  L.  R.  A.  580. 

10  Tallby  v.  Official  Receiver,  13  Q.  B.  Div.  523. 
"  Morrell  v.  Wootten,  16  Beav.  197;   White  v.  Coleman,  127  Mass. 
84. 

12  Scott  v.  Porcher,  3  Mer.  652. 

»»  Fitzgerald  r.  Stewart,  2  Huss.  &  M.  457. 


§§    246-247)  EQUITABLE    ASSIGNMENTS.  503 


SAME— NOTICE  TO  DEBTOR. 

246.  Notice  of  an  assignment  is  not  necessary  to 

render  it  perfect  as  between  the  assignor 
and  the  assignee,  whether  it  be  for  a  valu- 
able consideration  or  only  voluntary.1 

247.  But  the  neglect  to  give  notice  of  an  assign- 

ment, or  to  obtain  what  is  equivalent 
thereto,  may  have  the  effect: 

(a)  Of  rendering  subsequent  payments  to  the  as- 

signor valid. 

(b)  Of  enabling  a  subsequent  assignee,  purchaser, 

or  incumbrancer  to  gain  priority  by  giv- 
ing notice. 

The  only  object  to  be  gained  by  a  notice  to  the  debtor  is 
to  put  him  on  his  guard  against  dealing  with  the  assignor  on 
the  belief  that  he  still  continues  the  owner  of  the  debt.1 
The  assignment  is  complete,  as  between  the  assignor  and  as- 
signee, although  no  notice  is  given  the  depositary  or  holder 
of  the  fund ;  8  nor  is  notice  necessary  as  against  a  person 
standing  in  the  same  position  as  the  assignor ;  for  instance, 
a  volunteer,*  or  attaching  creditor.5  But,  if  the  assignee 
does  not  give  notice  of  the  assignment  to  the  debtor,  trustee, 
or  other  person,  from  whom  the  assignor  would  have  been 
entitled  to  receive  the  claims  assigned,  he  will  be  compelled 
to  allow  the  payments  made  by  such  debtor,  trustee,  or  other 
person  to  the  assignor  after  such  assignment.8 

§§  246,  247.  i  Burn  v.  Carvalho,  4  Mylne  &  C.  702;  In  re  Lowe's 
Settlement,  30  Beav.  95;  Roberts  v.  Lloyd,  2  Beav.  376;  Donaldson 
v.  Donaldson,  Kay,  711;  Board  of  Education  of  School  Dlst.  No.  85 
v.  Du  Parquet,  50  N.  J.  Eq.  234,  24  Atl.  922;  Williams  v.  Ingersoll, 
89  N.  Y.  508,  522,  523. 

2  Coates  v.  Bank,  91  N.  Y.  20,  27. 

«  Jones  v.  Gibbons,  9  Ves.  410;  Cook  v.  Black,  1  Hare,  390;  Wil- 
liams v.  Ingersoll,  89  N.  Y.  508. 

*  Justice  v.  Wynne,  12  Ir.  Ch.  289. 

e  Pickering  v.  Railway  Co.,  L.  R.  3  C.  P.  235;  Williams  v.  Inger- 
Boll,  89  N.  Y.  508;  Dix  v.  Cobb,  4  Mass.  508. 

«  Stocks  v.  Dobson,  4  De  Gex,  M.  &  G.  11;   Cotliay  v.  Sydenham, 


504  ASSIGNMENTS.  (Ch.    19 

If  the  assignee  does  not  perfect  his  title  by  giving  notice 
to  the  debtor,  a  subsequent  assignee,  purchaser,  or  incum- 
brancer  without  notice  of  the  prior  assignment  will  acquire 
priority  by  giving  notice  of  his  assignment.7  The  principle 
upon  which  this  rule  is  based  is  the  same  as  that  which  re- 
quires the  assignee  of  a  personal  chattel  to  take  every  step 
in  his  power  to  reduce  it  to  possession;  and,  in  case  of  his 
neglect,  postpones  him  to  a  subsequent  assignee  for  value 
who  takes  without  notice.  Of  the  two  parties  one  must  suf- 
fer, and  equity  will  protect  the  one  who  has  been  most  dili- 
gent in  the  preservation  of  his  rights.  Notice  to  the  debtor 
must  exist  to  give  the  assignee  a  perfect  title,  and  he  who 
first  accomplishes  this  result  is  entitled  to  the  protection  of  a 
court  of  equity.  But  a  subsequent  assignee,  giving  notice 
of  his  assignment,  will  not  gain  priority  over  a  prior  as- 
signee who  has  not  given  notice,  if,  at  the  time  of  giving  such 
notice,  he  has  express  or  implied  notice  of  the  former  as- 
signment.8 

This  rule  as  to  the  necessity  of  notice  to  protect  the  title 
of  an  assignee  has  not  been  adopted  in  all  the  courts  of  this 
country,  although  the  English  rule  seems  to  be  based  upon 
the  more  correct  view  of  the  law  on  the  question.9  The  rule 
in  New  York  is  that,  as  between  different  assignees  of  a 
chose  in  action  by  express  assignment  from  the  same  person, 
the  one  prior  in  point  of  time  will  be  protected,  although  he 
has  given  no  notice  of  such  assignment  to  either  the  subse- 
quent assignee  or  the  debtor.1* 

2  Brown,  Ch.  391;  Norrish  v.  Marshall,  5  Madd.  475;  Switzer  v. 
Noffsinger,  82  Va.  518,  521;  Van  Keuren  v.  Corkins,  66  N.  Y.  77; 
Laclede  Bank  v.  Schuler,  120  U.  S.  511.  7  Sup.  Ct  644,  30  L.  Ed.  704; 
Ren  ton  Y.  Monnler,  77  Cal.  449,  19  Pac.  820.  See,  also,  Dale  v. 
Klmpton,  46  Vt.  76;  McWllliams  v.  Webb,  32  Iowa,  577. 

T  Dearie  v.  Hall,  3  Russ.  1,  30,  which  Is  the  leading  case  on  this 
subject.  And  see  Spencer  v.  Clarke,  U  Ch.  Div.  137;  McWilliams  v. 
Webb,  32  Iowa,  577;  Spain  v.  Hamilton's  Adm'r,  1  Wall.  604,  <;_M, 
17  L.  Ed.  619;  Murdoch  v.  Finney,  21  Mo.  138;  Loomis  v.  Loomis. 
26  Vt.  198. 

•  Spencer  v.  Clarke,  9  Ch.  Dlv.  137. 

•  Vanbuskirk  v.  Insurance  Co.,  14  Conn.  145,  36  Am.  Dec.  473. 
Campbell  v.  Day,  16  Vt.   558;    Loomis  v.  Loomis,  26  Vt  198;    Clod- 
felter  v.  Cox.  1  Sneed  (Tenn.)  330,  60  Am.  Dec.  157;    Woodbridge  v. 
Perkins.  3  Day  (Conn.)  364. 

10  Fortuiiato  v.  Patten.  147  N.  Y.  277,  283,  41  N.  E.  572,  citing 
Fairbanks  v.  Sargent,  104  N.  Y.  108,  9  N.  E.  870;  Williams  v.  Inger 


§    248)  EQUITABLE    ASSIGNMENTS.  505 


SAME— ASSIGNMENT  SUBJECT  TO   EQUITIES. 

248.  The  general  rule  is  that  the  assignee  of  a 
chose  in  action  takes  it  subject  to  all  the 
equities  existing  against  it  in  the  hands  of 
his  assignor,  and  can  acquire  no  greater 
right  or  interest  therein  than  belonged  to 
such  assignor.1 

EXCEPTION— This  rule  does  not    apply    to   the 
assignment  of  negotiable  instruments. 

A  purchaser  of  a  chose  in  action  must  always  abide  by  the 
case  of  the  person  from  whom  he  buys.2  Any  defense  or 
set-off  to  which  the  debtor  is  entitled  as  against  the  assignor 
at  the  time  of  the  assignment  may  be  had  by  him  against  the 
assignee.8  If  the  debt  is  payable  only  on  condition,  the  con- 
dition is  binding  on  the  assignee,4  and  the  assignee  of  a 
mortgage  takes  it  subject  to  all  the  defenses  which  the  mort- 
gagor had  against  the  mortgagee.5  But,  if  a  debtor  actively 

soil,  89  N.  Y.  508;  Muir  v.  Schenck,  3  Hill  (N.  Y.)  228,  38  Am.  Dec. 
633.  And  see  Thayer  v.  Daniels,  113  Mass.  129;  Kennedy  v.  Parke, 
17  N.  J.  Eq.  415. 

§  248.  i  Callanan  v.  Edwards,  32  N.  Y.  483,  486;  Fairbanks  v. 
Sargent,  104  N.  Y.  116,  9  N.  E.  870,  58  Am.  Rep.  490;  Friedlander  v. 
Railway  Co.,  130  U.  S.  416,  9  Sup.  Ct.  570,  32  L.  Ed.  991;  East 
Birmingham  Land  Co.  v.  Dennis,  85  Ala.  565,  5  South.  317,  2  L.  R. 
A.  83U,  7  Am.  St.  Rep.  73;  Jeffries  v.  Evans,  6  B.  Mon.  (Ky.)  119, 
43  Am.  Dec.  158;  Kamena  v.  Huelbig,  23  N.  J.  Eq.  -78. 

2  Per  Lord  Thurlow,  in  Davies  v.  Austen,  1  Ves.  Jr.  247. 

«  Bebee  v.  Bank,  1  Johns.  (N.  Y.)  529,  552,  3  Am.  Dee.  3r,3;  Ex 
parte  Mackenzie,  L.  R.  7  Eq.  240;  Loomis  v.  Loomis,  26  Vt.  198; 
Rider  v.  Johnson,  20  Pa.  190;  McKenna  v.  Kirkwood,  50  Mich.  544, 
15  N.  W.  898;  Fairbanks  v.  Sargent,  104  N.  Y.  116,  9  N.  E.  870,  58 
Am.  Rep.  490;  Goldthwaite  v.  Bank,  67  Ala.  549;  Baker  v.  Kinsey, 
41  Ohio  St.  403. 

«  Tooth  v.  Hallett,  4  Ch.  Div.  242;  Western  Bank  v.  Sherwood,  29 
Barb.  (N.  Y.)  383. 

s  Hill  v.  Hoole,  116  N.  Y.  299,  302,  22  N.  E.  547,  5  L.  R.  A.  620; 
Bennett  Y.  Bates,  94  N.  Y.  354,  3G3;  They  ken  v.  Machine  Co.,  109 
Pa.  95;  Tabor  v.  Foy,  56  Iowa,  539,  9  N.  W.  897.  Though  the  mort- 
gage is  given  to  secure  a  negotiable  note,  the  fact  that  the  note,  as 
well  as  the  mortgage,  is  assigned  to  a  bona  fide  purchaser  before 
maturity,  does  not  enable  the  assignee  to  take  a  mortgage  dis- 
charged of  equities  in  favor  of  the  mortgagor.  Scott  v.  Maglough- 


606  ASSIGNMENTS.  (Ch.    19 

misleads  an  assignee  as  to  the  existence  of  a  defense  or  set- 
off  possessed  by  him,  or  remains  silent  when  it  his  duty  to 
speak,  he  may  be  estopped  from  taking  advantage  of  such 
defense  or  set-off." 

Where  an  assignment  is  made  by  an  assignee  of  a  chose 
in  action  formerly  assigned  to  him,  the  question  arises  as  to 
whether  the  subsequent  assignee  takes  subject  to  the  equi- 
ties existing  between  the  first  assignor  and  his  assignee. 
In  the  leading  case  of  Bush  v.  Lathrop  7  it  was  held  that 
the  second  assignee  stands  in  the  shoes  of  the  first;  and 
therefore,  where  a  mortgagee  assigns  a  mortgage  as  secu- 
rity for  a  much  smaller  sum  than  the  mortgage  debt,  and 
the  assignee  transfers  the  mortgage  for  its  full  face  value  to 
a  purchaser  without  notice,  the  mortgagee  may  compel  a 
return  of  the  mortgage  by  payment  of  the  amount  secured, 
and  not  the  face  of  the  mortgage,  or  the  sum  paid  by  the 
purchaser.8  In  the  case  of  corporate  stock,  however,  which 
is  of  a  quasi  negotiable  character,  the  rule  is  that  a  stock- 
holder who  clothes  another  with  the  apparent  title  is  es- 
topped to  assert  his  rights  as  against  a  bona  fide  purchaser 
from  the  assignee  for  value,  and  without  notice.* 

In  the  case  of  negotiable  paper,  custom  and  statutes  have 
combined  to  render  the  title  of  a  bona  fide  purchaser  for 
value,  before  maturity,  perfect  as  against  the  maker,  what- 
ever defenses  the  latter  may  have  had  against  the  payee.10 

Hn,  133  111.  33,  24  N.  E.  1030;  Redin  r.  Branhan.  43  Minn.  283,  45 
N.  W.  445;  Woodruff  v.  Institution,  34  N.  J.  Eq.  174.  Contra,  Tay- 
lor v.  Page,  6  Allen  (Mass.)  86;  Spence  v.  Railroad  Co.,  79  Ala,  576; 
Cooper  v.  Smith,  75  Mich.  247,  42  N.  W.  815;  Cornell  v.  Hlchins,  11 
Wis.  353. 

«  In  re  Agra  &  Masterman's  Bank,  2  Ch.  App.  391;  Sargeant  v. 
Sargeant,  18  Vt.  371;  Middletown  Bank  v.  Jerome,  18  Conn.  443; 
Watson's  Ex'rs  v.  McLaren,  19  Wend.  (N.  Y.)  557. 

T  22  N.  Y.  535. 

•  The  same  principle  was  applied  In  Davis  r.  Bechsteln,  69  N.  Y. 
440,  442,  25  Am.  Rep.  218;    Schafer  v.  Reilly,  50  N.  Y.  61;    Trustees 
of  Union  College  v.  Wheeler,  61  N.  Y.  88;    Fairbanks  v.  Sargent,  104 
N.  Y.  117,  9  N.  E.  870. 

•  McNeil  v.  Bank,  46  N.  Y.  325.  7  Am.  Rep.  341;    Bangor  Electric 
Light  &  Power  Co.  v.  Robinson  (C.  C.)  52  Fed.  520. 

10  Ex  parte  City  Bank,  3  Ch.  App.  758. 


§    24'J)  REMEDIES    SEEKING    PECUNIARY    RELIEF.  507 

CHAPTER  XX. 

REMEDIES  SEEKING  PECUNIARY  RELIEF. 

249.  Contribution. 

250.  Exoneration. 

251.  Subrogation. 

252.  Marshaling. 

253.  Accounting. 

254.  When  Equity  will  Assume  Jurisdiction. 

255.  Defense  of  Stated  Account. 

256.  Application  of  Payments. 

CONTRIBUTION. 

249.  Where  several  parties  are  jointly,  or  jointly 
And  severally,  liable  on  a  contract,  or  ob- 
ligation in  the  nature  of  a  contract,  or  are 
sureties  for  the  same  principal  debtor,  for 
the  same  debt  or  obligation,  and  one  of 
them  has  paid  more  than  his  proportionate 
share  of  such  debt  or  obligation,  he  is  en- 
titled to  contribution  from  his  co-obligors 
or  co-sureties  for  the  excess  paid  by  him. 

The  doctrine  of  contribution  is  not  so  much  founded  on 
contract  as  on  the  principle  of  equity  and  justice  that,  where 
the  interest  is  common,  the  burden  also  shall  be  common.1 
The  equitable  maxim,  "Equality  is  equity,"  is  the  basis  of 
this  principle.2  The  relief  will  be  granted,  as  we  have  seen, 

§  249.  i  Campbell  v.  Mesier,  4  Johns.  Ch.  (N.  Y.)  334,  8  Am.  Dec. 
670.  And  see  Steel's  Appeal,  72  Pa.  101;  Eads  v.  Retherford,  114 
Ind.  273,  16  N.  E.  587,  5  Am.  St.  Rep.  611;  Vogle  v.  Brown,  120  111. 
338,  11  N.  E.  327,  12  N.  E.  252;  Tomlinson  v.  Bury,  145  Mass.  346,  14 
N.  E.  137,  1  Am.  Rep.  464. 

2  Dering  v.  Earl  of  Winchelsea,  1  Cox,  Ch.  318,  1  White  &  T. 
Lead.  Cas.  Eq.  106;  Stirling  y.  Forrester,  3  Bligh,  590;  Norton  v. 
Coons,  6  N.  Y.  33,  40;  Wells  v.  Miller,  66  N.  Y.  255;  Hendrick  v. 
Whittemore,  105  Mass.  23;  Chipmau  v.  Morrill,  20  Oal.  131,  *35; 
Robertson  v.  Deatherage,  82  111.  511;  Camp  v.  Bostwick,  20  Ohio 
St.  337,  5  Am.  Rep.  669.  After  the  action  of  assumpsit  became  es- 


508  REMEDIES    SEEKING    PECUNIARY    RELIEF.  (Ch.   20 

to  one  jointly  liable  for  the  payment  of  a  mortgage  debt,  who 
has  paid  more  than  his  proportionate  share  on  redemption.* 
A  partner,  who  has  paid  more  than  his  proportionate  share 
of  the  firm  debts,  is  entitled  to  contribution  from  his  co-part- 
ners, or  out  of  the  partnership  property.*  A  stockholder 
individually  liable  for  the  corporate  debts,  who  has  paid  more 
than  his  proportionate  share  thereof,  may  enforce  contribu- 
tion from  the  other  stockholders,  who  are  also  liable.0 

The  most  frequent  use  of  the  remedy  exists  in  the  case  of 
co-sureties.  A  surety  who  has  paid  the  debt  is  not  only  en- 
titled to  contribution  from  the  other  sureties,"  but  also  to 
the  benefit  of  any  security  which  any  of  them  may  have 
taken  from  the  principal  debtor  by  way  of  indemnity.7 
But,  where  sureties  are  bound  by  different  instruments  for 
distinct  portions  of  a  debt  due  from  the  same  principal,  if 
the  suretyship  of  each  is  a  separate  and  distinct  transaction, 
there  will  be  no  right  of  contribution  among  the  sureties.8 
The  surety  who  pays  the  debt  must  first  exhaust  his  reme- 
dies against  the  principal  debtor,  before  he  is  entitled  to  con- 
tribution from  his  co-sureties.* 


tablished,  courts  of  law  gave  relief  by  way  of  contribution,  on  the 
theory  of  Implied  contract  Jeffries  v.  Ferguson,  87  Mo.  244.  The 
legal  remedy  was,  however,  never  as  efficient  as  the  equitable. 
Thus,  where  there  were  several  obligors,  and  one  became  insolvent, 
the  one  who  paid  the  entire  debt  could  at  law  have  recovered  only 
an  aliquot  part  of  the  whole,  calculated  according  to  the  original 
number  of  co-obligors.  Cowell  v.  Edwards,  2  Bos.  &  P.  2G8.  In 
equity,  however,  he  can  compel  the  remaining  co-obligors  to  con- 
tribute ratably  with  himself.  Hitchman  v.  Stewart,  3  Drew.  271; 
Breckinridge  v.  Taylor,  5  Dana  (Ky.)  110;  Whitman  v.  Porter,  107 
Mass.  522;  Hodgson  v.  Baldwin,  65  III  532;  McKenna  v.  George, 
2  Rich.  Eq.  (S.  C.)  15. 

»  Ante,  p.  470. 

«  Kelly  v.  Kauffman,  18  Pa.  351;  Logan  v.  Dixon,  73  Wis.  533,  41 
N.  W.  713:  Sears  v.  Starbird,  78  Gal.  225,  20  Pac.  547. 

»  Beach,  Eq.  Jur.  8  832;  Aspinwall  v.  Sacchi,  57  N.  Y.  331;  Ray 
T.  Powers,  134  Mass.  22.  But  see  O'Reilly  v.  Bard,  105  Pa.  569. 

«  Adams,  Eq.  p.  269;  Newcomb  v.  Gibson,  127  Mass.  396;  Mason 
T.  Plerron,  69  Wls.  585.  34  N.  W.  921;  Stubbins  v.  Mitchell.  82  Ky. 
635;  Neilson  v.  Williams,  42  N.  J.  Eq.  291,  11  Atl.  257;  Moore  v. 
Baker  (0.  0.)  84  Fed.  1;  Rynearson  v.  Turner,  52  Mich.  7,  17  N.  W. 
219. 

T  Steel  v.  Dlxon,  17  Ch.  Dlv.  825;  Agnew  v.  Bell,  4  Watts  (Pa.) 
83;  Guild  v.  Butler.  127  Mass.  386. 

•  Moore  v.  Isley,  22  N.  C.  372;   Johnson  v.  Wild,  44  Ch.  Dlv.  146. 

•  Camp  v.  Bostwick,  20  Ohio  St  337,  5  Am.  Rep.  669. 


§    249)  CONTRIBUTION.  609 

If  the  sureties  are  not  obligated  for  the  same  purpose,  or 
do  not  occupy  the  position  of  co-sureties,  then,  either  (i) 
the  surety  paying  the  debt  .cannot  enforce  contribution, — 
as,  where  a  surety  is  substituted  for  another,  he  cannot  en- 
force contribution  against  the  person  whom  he  has  succeed- 
ed ; 10  or  (2)  a  surety  first  in  point  of  time  may  have  no  rem- 
edy against  one  who  is  subsequent, — as,  where  a  note  is 
signed  by  a  person  as  surety  for  those  who  have  signed  be- 
fore him;11  or  (3)  a  subsequent  surety  may  have  no  right 
of  contribution  against  the  first, — as,  where  an  action  is 
brought  on  the  original  obligation,  and  in  such  action  an  ap- 
peal bond  is  given,  the  surety  on  such  bond  cannot  enforce 
contribution  against  a  surety  on  the  original  obligation.18 
Where  one  surety  has  succeeded  in  extinguishing  the  debt 
by  payment  of  less  than  its  full  value,  he  cannot  enforce  con- 
tribution from  his  co-sureties  for  more  than  the  amount  paid 
by  him.13  It  would  not  be  equitable  to  permit  a  surety  to 
speculate  upon  the  debt. 

Though  the  principle  of  contribution  is  a  constructive  doc- 
trine of  equity,  and  not  founded  on  contract,  still  a  person 
may,  by  contract,  qualify  or  take  himself  out  of  the  reach  of 
the  principle.14  And  if  the  liability  of  the  sureties  arise  ex 
delicto,  there  is  no  right  to  contribution,  for  courts  of  equity 
will  not  lend  their  aid  to  equalize  burdens  of  wrongdoers, 
but  will  leave  them  where  found.16  This  rule  does  not 
apply,  however,  unless  the  parties  were  knowingly  and  will- 
fully associated  in  wrongdoing.16 

10  Longley  v.  Griggs,  10  Pick.  (Mass.)  121. 

11  Harris  v.  Warner,  13  Wend.  (N.  Y.)  400. 

12  Schnitzel's  Appeal,  49  Pa.  23;   Douglass  v.  Fagg,  S  Leigh  (Va.) 
588. 

is  Reed  V.  Norris,  2  Mylne  &  C.  361,  375;  Bonney  v.  Seely,  2 
Wend.  (N.  Y.)  481;  Lawrence  v.  Blow,  2  Leigh  (Va.)  30. 

i*  Swain  v.  Wall,  1  Ch.  R.  80;  Craythorne  v.  Swinburne,  14  Ves. 
160,  163. 

is  Merry  weather  v.  Nixan,  8  Term  R.  186;  Peck  v.  Ellis,  2  Johns. 
Ch.  (N.  Y.)  131;  Churchill  v.  Holt,  131  Mass.  67,  41  Am.  Rep.  191; 
Spalding  v.  Oakes'  Adm'r,  42  Vt.  343;  Selz  v.  Unna,  6  Wall.  327,  18 
L.  Ed.  799. 

i«  Moore  v.  Appleton,  26  Ala.  633;  Ankeny  r.  Moffett,  37  Minn. 
109,  33  N.  W.  320;  Acheson  v.  Miller,  2  Ohio  St  203,  59  Am.  Dec. 
603. 


510  REMEDIES   SEEKING    PECUNIARY    RELIEF.  (Ch.   20 


EXONERATION. 

250.  Where  one  secondarily  liable  for  the  payment 
of  a  debt  not  arising  ex  delicto  has  paid 
or  satisfied  the  debt,  he  is  entitled  to  be  re- 
imbursed by  the  person  primarily  liable 
therefor,  and  may  enforce  exoneration  from 
him. 

Where  a  surety  pays  a  debt  on  behalf  of  the  principal 
debtor,  the  rule,  both  at  law  and  in  equity,  is  that  he  has  a 
right  to  call  upon  the  principal  debtor  for  reimbursement ; * 
and  where,  by  the  terms  of  the  contract,  a  surety  is  only  lia- 
ble after  the  default  of  the  principal  debtor  and  a  prior  surety, 
he  may  enforce  his  claim  for  exoneration  against  either  of 
them.2  A  jurisdiction  at  law  exists  to  grant  relief  in  all 
such  cases,  since  the  right  of  recovery  is  based  upon  an  im- 
plied contract  of  the  person  primarily  liable,  and  in  this  coun- 
try resort  is  generally  had  to  such  jurisdiction.  But  the 
equitable  jurisdiction  also  exists,  and  it  is  customary  to  treat 
the  remedy  as  one  pertaining  to  equity  jurisprudence. 

If  the  surety  discharges  the  debt  for  less  than  the  full 
amount,  he  cannot,  as  against  his  principal,  make  himself  a 
creditor  for  the  whole  amount,  but  can  only  claim  what  he 
has  actually  paid  in  discharge  of  the  debt,  with  interest  and 
costs.*  The  surety  may  maintain  a  suit  in  equity  against 
his  principal  to  compel  him  to  pay  the  debt  at  any  time  after 
the  obligation  becomes  due,  before  payment  by  him,  and 
although  he  has  not  been  sued  by  the  creditor.*  A  person 

§  250.  i  Toussaint  v.  Martinnant,  2  Term  R.  105;  Craythorne  v. 
Swinburne,  14  Ves.  162;  White  v.  Miller,  47  Ind.  385;  Tillotson  v. 
Rose,  11  Mete.  (Mass.)  299;  Kimmel  v.  Lowe,  28  Minn.  2G5,  9  N.  W. 
764;  Rice  v.  Southgate,  16  Gray  (Mass.)  142;  Konitzky  v.  Meyer, 
49  N.  Y.  571;  Merwin  v.  Austin,  58  Conn.  22,  18  Atl.  1029. 

»  Harris  v.  Warner,  13  Wend.  (N.  Y.)  400. 

»  Reed  v.  Norris,  2  Mylne  &  C.  361,  375;  Blow  v.  Maynard,  2 
Leigh  (Va.)  30;  Delaware,  L.  &  W.  R.  Co.  v.  Iron  Co.,  38  N.  J.  Eq. 
151;  Hayden  v.  Cabot,  17  Mass.  169. 

«  Ranelaugh  v.  Hayes,  1  Vern.  189;  Wooldrldge  Y.  Norris,  L.  R. 
6  Eq.  410;  Whltridge  v.  Durkee,  2  Md.  Ch.  442;  Hayes  v.  Ward, 
4  Johns.  Ch.  (N.  Y.)  123,  8  Am.  Dec.  554;  Irick  v.  Black,  17  N.  J. 
Eq.  189;  Heliums  v.  Abercronibie,  15  S.  C.  110,  40  Am.  Rep.  684; 


§    251)  SUBROGATION.  511 

who  is  entitled  to  be  indemnified  against  loss  is  not  obliged 
to  wait  until  he  has  suffered,  and  perhaps  been  ruined  before 
having  recourse  to  judicial  aid.' 


SUBROGATION. 

261.  Whenever,  to  protect  his  own  rights,  one  not 
a  volunteer  pays  or  satisfies  a  debt  for 
which  another  is  primarily  liable,  he  is 
subrogated  to  the  rights  of  the  creditor, 
and  may  enforce  against  the  person  pri- 
marily liable  all  the  securities,  benefits,  and 
advantages  held  by  the  creditor. 

The  doctrine  of  subrogation  is  of  purely  equitable  origin 
and  nature,  and  its  operation  is  always  controlled  by  equita- 
ble principles.  Like  contribution,  it  rests  on  principles  of 
equity  and  justice,  and  may  be  decreed  though  no  contract 
or  priority  of  any  kind  exists  between  the*  parties.1  There 
are  many  different  classes  of  cases  in  which  the  doctrine  will 
be  applied,  but  the  most  important  and  useful  for  the  pur- 
pose of  illustrating  the  several  principles  connected  with  the 
doctrine  are  cases  of  subrogation  in  favor  of  sureties.  A 
surety,  on  the  payment  of  the  debt  of  his  principal,  is  enti- 
tled to  all  the  securities  which  the  creditor  has  against  the 
principal  debtor,  whether  given  at  the  time  of  the  contract 
or  subsequent  thereto,  and  whether  given  with  or  without 
the  knowledge  of  the  surety.2  If  the  creditor  obtains  a  judg- 
ment against  the  principal,  the  surety,  on  payment  of  the 
debt,  is  subrogated  to  the  rights  of  the  creditor  in  the  judg- 

Moore  v.  Topliff,  107  111.  241;  Beaver  v.  Beaver,  23  Pa,  167;  Fame 
Ins.  Co.'s  Appeal,  83  Pa.  396,  405. 

e  1  Lindl.  Partn.  p.  375. 

§  251.  i  Cans  v.  Thieme,  93  N.  Y.  225,  232;  Pease  v.  Eagan,  131 
N.  Y.  262.  30  N.  B.  102;  Cottrell's  Appeal,  23  Pa.  294;  JEtna  Life 
Ins.  Co.  v.  Middleport,  124  U.  S.  534,  8  Sup.  Ct.  625,  31  L.  Ed.  537; 
Philbrlck  v.  Shaw,  61  N.  H.  356. 

a  Mayhew  v.  Crlckett,  2  Swanst.  185;  Pearl  v.  Deacon,  24  Beav. 
186;  Lake  v.  Brutton,  18  Beav.  34;  Lewis  v.  Palmer,  28  N.  Y.  271; 
Johnson  v.  Bartlett,  17  Pick.  (Mass.)  477;  In  re  Hess'  Estate,  69 
Pa.  272;  Budd  v.  Olver,  147  Pa.  194,  23  Atl.  1105;  Frank  v.  Traylor, 
130  Ind.  145,  29  N.  E.  486,  16  L.  R.  A.  115. 


512  REMEDIES    SEEKING    PECUNIARY    RELIEF.  (Ch.   20 

ment.*  In  England,  prior  to  recent  legislation,  if  a  surety 
paid  a  contract  which  he  executed  jointly  with  his  principal 
debtor,  or  paid  a  judgment  against  him  and  his  principal 
jointly,  the  contract  or  judgment  was  thereby  ended  and  dis- 
charged, and  could  not  be  enforced  by  the  surety.4  Nego- 
tiable paper,  paid  by  an  indorser,  is  kept  alive  for  his  benefit, 
and  he  may  enforce  it  against  prior  indorsers  and  the  mak- 
er.0 A  junior  mortgagee,  who  pays  off  a  senior  incum- 
brance  on  the  land  for  his  own  protection,  is  subrogated  to 
all  the  rights  and  remedies  of  the  senior  incumbrancer.6  An 
insurance  company  which  pays  a  loss  caused  by  the  negli- 
gence of  a  third  person  is  subrogated  to  all  rights  of  the  in- 
sured against  such  third  person.7 

Numerous  as  are  the  applications  of  this  principle,  it  nev- 
ertheless has  its  limits.  A  mere  volunteer  cannot  invoke  the 
aid  of  subrogation.  One  of  the  principles  lying  at  the  foun- 
dation of  subrogation  in  equity  is  that  the  person  seeking 
the  subrogation  must  have  paid  the  debt  under  some  neces- 
sity, to  save  himself  from  loss  which  might  arise  or  accrue 

»  Parsons  y.  Briddock,  2  Vern.  608;  Townsend  v.  Whitney,  75  N. 
Y.  431;  Fleming  v.  Beaver,  2  Rawle  (Pa.)  128,  19  Am.  Dec.  629: 
German-American  Sav.  Bank  v.  Fritz,  68  Wis.  390,  32  N.  W.  123; 
Crislield  v.  State,  55  Md.  192;  Smith  v.  Ruinsey,  33  Mich.  183: 
Lumpkin  v.  Mills,  4  Ga.  343;  Crawford  v.  Logan,  97  111.  396;  Schleiss- 
mann  v.  Kallenberg,  72  Iowa,  338,  33  N.  W.  459;  Lyon  v.  Boiling, 
9  Ala.  463,  44  Am.  Dec.  444.  In  some  of  the  states,  however,  It  is 
held  that  payment  by  the  surety  extinguishes  the  judgment  Adams 
v.  Drake,  11  Cush.  (Mass.)  504;  Findlay  v.  Bank,  2  McLean,  44, 
Fed.  Gas.  No.  4,791. 

*  Dering  v.  Earl  of  Wlnchelsea,  1  Cox,  Oh.  318, 1  White  &  T.  Lead. 
Cas.  Eq.  p.  114;    Hodgson  v.  Shaw,  3  Mylne  &  K.  183;    Pearl  v.  Dea 
con,  24  Beav.  186. 

0  Beckwith  v.  Webber,  78  Mich.  390,  44  N.  W.  330;    Selxas  Y.  Gon- 
Boulin,  40  La,  Ann.  351,  4  South.  453;    Rushworth  v.  Moore,  36  N.  H. 
188;    Parker  v.  Sanborn,  7  Gray  (Mass.)  191;    North  Nat  Bank  v. 
Hamlin,  125  Mass.  506. 

•  Mattlson  v.  Marks,  31  Mich.  421,  18  Am.  Rep.  197;    Levy  v.  Mar- 
tin, 48  Wis.  198,  4  N.  W.  35;    Yaple  v.  Stephens,  36  Kan,  680,  14 
Pac.  222;    Lamb  v.  Montague,  112  Mass.  352. 

1  Burnand  v.  Rodocanachi,  7  App.  Caa.  339;   Deming  v.  Storage 
Co.,  90  Tenn.  306,  17  S.  W.  89,  13  L.  R.  A.  518;    Connecticut  Fire 
Ins.  Co.  v.  Railroad  Co.,  73  N.  Y.  399,  29  Am.  Rep.  171;   Pratt  v. 
Radford.  52  Wis.  114,  8  N.  W.  606;    Chicago,  St.  L.  &  N.  O.  R.  Co. 
T.  Car  Co.,  139  II.  S.  79,  11  Sup.  Ct  490,  35  L,  Ed.  97;    Perrott  v. 
Shearer,  17  Mich.  48. 


§    252)  MARSHALING.  513 

to  him  by  the  enforcement  of  the  debt  in  the  hands  of  the 
original  creditor.8  One  who  discharges  an  incumbrance  up- 
on property  in  which  he  has  no  interest  is  not  subrogated  to 
the  rights  of  the  holder  of  the  mortgage,  nor  does  the  loan 
of  money  to  discharge  a  lien  subrogate  the  lender  to  the 
rights  of  the  lien  holder.9 

The  principle  will  not  be  applied  in  favor  of  one  who  has 
been  guilty  of  inequitable  or  illegal  conduct  in  the  transac- 
tion.10 It  is  only  to  prevent  fraud  and  subserve  justice  that 
equity  ingrafts  the  wholesome  provisions  of  subrogation  or 
of  equitable  lien  upon  a  transaction,  and  it  will  never  be 
done  where  it  will  result  in  injustice.11 

MARSHALING. 

252.  Where  one  person  has  a  clear  right  to  resort 
to  two  funds,  and  another  person  has  a 
right  to  resort  to  but  one  of  them,  the 
latter  may  compel  the  former,  as  double 
creditor,  to  exhaust  the  fund  on  •which  the 
latter,  as  a  single  creditor,  has  no  claim.1 


Life  Ins.  Co.  v.  Middleport,  124  U.  S.  534,  547,  8  Sup.  Ct. 
625,  31  L.  Ed.  537.  And  see,  also,  Acer  v.  Hotchkiss,  97  N.  Y.  395, 
403:  Sandford  v.  McLean,  3  Paige  (N.  Y.)  117,  23  Am.  Dec.  773; 
Desot  v.  Ross,  95  Mich.  81,  54  N.  W.  694;  Wormer  v.  Agricultural 
Works,  62  Iowa,  699,  14  N.  W.  331;  Watson  v.  Wilcox,  39  Wis.  643, 
20  Am.  Rep.  63;  McNeil  v.  Miller,  29  W.  Va.  480,  2  S.  E.  335;  Wads- 
worth  v.  Blake,  43  Minn.  509,  45  N.  W.  1131;  Webster's  Appeal,  86 
Pa.  409;  Brice  v.  Watkins,  30  La.  Ann.  21;  Kitchell  v.  Mudgett,  37 
Mich.  82;  Repass  v.  Moore  (Va.)  36  S.  E.  474. 

»  Moody  v.  Moody,  68  Me.  155;  Unger  v.  Letter,  32  Ohio  St.  210; 
Wilson  v.  Sqper,  44  Me.  118;  Farmers'  &  Mechanics'  Nat  Bank  v. 
Railway  Co.,v  72  N.  Y.  188;  Jacques  v.  Fackney,  64  111.  87;  Mosier's 
Appeal,  56  Pa.  76,  93  Am.  Dec.  783;  Van  Winkle  v.  Williams,  38 
N.  J.  Eq.  105. 

10  Rowley  v.  Towsley,  53  Mich.  329,  19  N.  W.  20;    Milwaukee  & 
M.  R.  Co.  v.  Soutter,  13  Wall.  517,  20  L.  Ed.  543;    Perkins  v.  Hall, 
105  N.  Y.  539,  12  N.  E.  48;    Devine  v.  Harkness,  117  111.  147,  7  N.  E. 
52;    Wilkinson  v.  Babbitt,  4  Dill.  207,  Fed.  Cas.  No.  17,668;    John- 
son v.  Moore,  33  Kan.  90,  5  Pac.  406;  Guckenhelmer  v.  Angevlne,  81 
N.  Y.  394. 

11  Kelly  v.  Kelly,  54  Mich.  47,  19  N.  W.  580;   D  wight  Y.  Lumber 
Co.,  82  Mich.  624,  47  N.  W.  102. 

§  252.  i  Per  Lord  Westbury,  in  Dolphin  v.  Aylward,  L.  R.  4  H.  I* 
486. 

EATON.EQ.—  33 


514  REMEDIES   SEEKING    PECUNIARY    RELIEF.  (Ch.   20 

The  doctrine  of  marshaling  owes  its  introduction  into 
equity  jurisprudence  to  the  fact  that  at  common  law  a  debt 
by  specialty  could  be  enforced  on  the  debtor's  death  against 
his  land  as  well  as  against  his  personal  estate,  while  simple 
contract  debts  could  be  enforced  against  the  personalty  only. 
Courts  of  equity,  therefore,  laid  down  the  principle  that  a 
person  having  resort  to  two  funds  shall  not,  by  his  choice, 
disappoint  another  having  resort  to  but  one.2  The  doctrine 
has  been  illustrated  in  the  leading  case  of  Webb  v.  Smith,' 
as  follows :  "If  A.  has  a  charge  upon  Whiteacre  and  Black- 
acre,  and  if  B.  also  has  a  charge  upon  Blackacre  only,  A. 
must  take  payment  of  his  charge  out  of  Whiteacre,  and  must 
leave  Blackacre  so  that  B.,  the  other  creditor,  may  follow  it, 
and  obtain  payment  of  his  debt  out  of  it.  In  other  words, 
if  two  estates  (Whiteacre  and  Blackacre)  are  mortgaged  to 
one  person,  and  subsequently  one  of  them  (Blackacre)  is 
mortgaged  to  another  person,  unless  Blackacre  is  sufficient 
to  pay  both  charges,  the  first  mortgagee  will  be  compelled 
to  take  satisfaction  out  of  Whiteacre,  in  order  to  leave  Black- 
acre  to  the  second  mortgagee  upon  which  alone  he  can  go." 

The  practice  adopted  in  the  early  days  was  to  summarily 
forbid  the  creditor  having  two  funds  at  his  disposal  to  re- 
sort to  that  which  was  the  sole  resource  of  the  other.4  The 
remedy  by  injunction  is,  however,  rarely  applied  in  modern 
times.8  The  usual  course  is  to  permit  the  double  creditor  to 
enforce  his  claim  as  he  pleases ;  but,  if  he  chooses  to  resort 
to  the  only  fund  on  which  another  person  has  a  claim,  such 
person  is  subrogated  to  all  his  rights  against  the  fund  to 
which  otherwise  he  could  not  have  resorted.* 

Marshaling  will  not  be  enforced  to  the  detriment  or  injury 
of  the  rights  of  another  person.7  It  will  not  be  available 

2  Trimmer  v.  Bayne,  9  Ves.  209,  211;  Aldrich  v.  Cooper,  8  Ves. 
882.  2  White  &  T.  Lend.  Gas.  Eq.  82. 

»  30  Ch.  Div.  192,  Brett  Cas.  Eq.  (DIckson  Ed.)  222, 

«  Kerley,  Hist  Eq.  p.  215. 

•  Evertson  v.  Booth,  19  Johns.  (N.  Y.)  495;  Woolcocks  T.  Hart, 
1  Paige  (N.  Y.)  185. 

«  Milmine  v.  Bass  (C.  C.)  29  Fed.  632;  Ramsey's  Appeal,  2  Watts 
(Pa.)  22S,  27  Am.  Dec.  301;  Hudklns  v.  Ward,  30  W.  Va.  204,  3  S. 
I-:.  <:oo.  8  Am.  St.  Rep.  22. 

T  Gllllnm  v.  McConnack,  85  Tenn.  597,  611,  4  S.  W.  521;  People 
T.  F-.  Remington  &  Sous,  121  N.  Y.  333.  24  N.  E.  793. 


§    2o2)  MAUSUALI.NG.  515 

where  to  compel  a  resort  to  the  singly  charged  fund  would 
produce  an  additional  risk,  injury,  or  delay  to  the  double 
creditor ; 8  nor  will  it  be  enforced  against  intervening  liens 
having  a  superior  equity.8  The  equity  ought  not  to  be  ap- 
plied unless  there  is  reasonable  certainty  that  one  fund  is 
sufficient  to  satisfy  the  debt  of  the  first  creditor.  When,  in 
a  foreclosure  suit  brought  by  the  holder  of  the  first  lien, 
there  is  reason  to  think  that  both  the  real  estate  mortgaged 
and  certain  personal  securities  which  are  subject  to  the  plain- 
tiff's lien  would,  if  brought  to  a  sale,  be  insufficient  to  pay 
the  debt  and  interest  due  from  the  mortgagor,  the  equitable 
rule  does  not  apply  in  favor  of  subsequent  mortgagees  or 
judgment  creditors.  Under  such  circumstances,  all  that  the 
subsequent  incumbrancers  have  a  right  to  claim  is  a  judg- 
ment awarding  to  them,  after  the  payment  of  the  plaintiff's 
debt,  the  right,  in  the  order  of  priority  of  their  respective 
liens,  to  be  subrogated  to  the  plaintiff  in  respect  to  the  se- 
curities then  held  by  him.10  And  it  has  been  held  that  a 
creditor  holding  security  upon  different  kinds  of  property 
cannot  be  compelled  to  select  that  which  is  least  convenient 
and  available  to  himself,  in  order  to  aid  other  creditors 
whose  claims  are  not  adequately  secured.11 

The  most  frequent  use  of  the  remedy  is  for  the  protection 
of  prior  mortgagees.  When  two  mortgagees  have  mort- 
gage liens  on  the  same  land,  and  one  of  them  has  also  other 
security  for  his  debt,  the  latter  must  satisfy  his  claim  out  of 
his  other  security  so  far  as  it  will  go  before  he  will  be  per- 
mitted to  have  recourse  to  the  mortgage.12  Where  a  part- 
ner gives  a  mortgage  covering  both  firm  and  individual 
property  to  secure  a  firm  debt,  an  individual  creditor  of  the 
partner  may  compel  the  firm  creditor  to  exhaust  the  firm 
assets  before  having  recourse  to  the  individual  property.13 
And  a  legatee  whose  legacy  is  charged  on  land  cannot  en- 

«Brinkerhoff  v.  Marvin,  5  Johns.  Ch.  (N.  Y.)  320;    Evertson  v. 
Booth,  19  Johns.  (N.  Y.)  486. 
•  Leib  v.  Stribling,  51  Md.  285. 
»o  Hudkins  v.  Ward,  30  W.  Va.  204,  3  S.  E.  600,  8  Am.  St.  Rep.  22. 

11  Emmons  v.  Bradley,  56  Me.  333. 

12  Beach,  Mod.  Eq.  Jur.  §  789;    Andreas  v.  Hubbard,  50  Conn.  351; 
Sibley  v.  Baker,  23  Mich.  312;    Millsaps  v.  Bond,  64  Miss.  453,  1 
South.  506;    Turner  v.  Flinn,  67  Ala.  529;    Gusdorf  v.  Ikelheimer,  75 
Ala.  148;    Hudson  v.  Dismukes,  77  Va.  242. 

is  Bass  v.  Estill,  50  Miss.  300. 


516  REMEDIES    SEEKING    PECUNIARY    RELIEF.  (Ch.  20 

force  it  out  of  the  testator's  personal  estate  to  the  detriment 
of  the  other  legatees  whose  legacies  are  not  thus  charged; 
and,  if  the  privileged  legatee  does  resort  to  the  personalty, 
the  others  will  be  subrogated  to  his  rights  in  the  realty.14 
The  equity  of  marshaling  was  most  frequently  employed  in 
England  to  confine  the  payment  of  the  debts  of  a  decedent 
which  are  a  charge  upon  real  property,  so  that  the  rights  of 
others  in  the  personalty  of  the  decedent  should  not  be  inter- 
fered with.  In  the  American  states  the  equity  is  not  so  fre- 
quently employed  in  such  cases,  since  both  the  real  and  per- 
sonal property  of  a  decedent  are  considered  assets  for  the 
payment  of  his  debts,  and  specialty  and  simple  contract  cred- 
itors are  upon  the  same  footing  as  to  both  classes  of  prop- 
erty. 

The  rules  relative  to  this  equity  are  never  applied  between 
creditors  of  different  persons.  Thus,  if  a  person  has  a  claim 
against  A.  and  B.,  jointly  and  severally,  a  creditor  of  B.  alone 
cannot  compel  the  former  creditor  to  apply  to  A.  alone,  so 
as  to  leave  the  property  of  B.  free  for  his  separate  debts,  un- 
less there  is  some  equity  between  A.  and  B.  themselves, 
which  would  entitle  B.  to  a  remedy  against  A,1* 

ACCOUNTING. 

853.  Courts  of  equity  acquired  jurisdiction  of  actions 
of  accounts  because  of  the  inconvenience  and 
difficulty  of  adjusting  conflicting  accounts  by 
a  jury,  and  the  inadequacy  of  the  remedies 
afforded  at  law. 

One  of  the  most  ancient  of  common-law  actions  is  that  of 
account  render.  This  action  was  the  only  means  which  the 
common  law  afforded  for  obtaining  a  settlement  of  an  ac- 
count, except  that  assumpsit  might  be  brought  for  a  deter- 
minate balance.1  In  assumpsit  it  was  necessary,  if  the  bal- 

>«  Hanby  v.  Roberta,  Amb.  128;  Bonner  v.  Bonner,  13  Yea.  379; 
Perry  v.  Hale,  44  N.  H.  363,  367;  Oryder's  Appeal,  11  Pa.  72. 

i»  Ex  parte  Kendall,  17  Ves.  520;  Meech  v.  Allen,  17  N.  Y.  301, 
72  Am.  Dec.  465;  Lloyd  v.  Galbralth,  32  Pa,  103;  Lee  v.  Gregory, 
12  Neb.  282,  11  N.  W.  297;  Huston's  Appeal,  68  Pa.  485. 

I  253.    *  3  BL  Comm.  162. 


§  254)  ACCOUNTING.  517 

ance  was  disputed,  for  the  jury  to  investigate  the  items  one 
by  one,  a  task  which,  in  long  and  complicated  accounts,  was 
practically  impossible.  The  action  of  account  render  was 
more  suitable.  After  a  judgment  quod  computet,  there  was  a 
reference  to  auditors,  who  could  examine  the  account  item 
by  item,  but  could  not  conduct  an  investigation  as  to  each 
disputed  item,  but  were  obliged  to  refer  each  of  them  to  the 
court  or  a  jury  as  a  distinct  issue  of  law  or  fact.  The  ac- 
tion of  account  could  be  employed  in  but  few  cases.  It 
would  lie  against  guardians  in  socage,  bailiffs,  and  receiv- 
ers ;  and,  in  favor  of  trade,  by  one  merchant  against  another. 
In  the  case  of  McMurray  v.  Rawson  2  it  was  stated  that  the 
action  did  not  seem  to  have  been  brought  in  England,  ac- 
cording to  the  reported  cases,  more  than  a  dozen  times  in 
the  last  two  centuries ;  and  attention  is  called  to  but  one 
case  in  New  York  prior  to  the  one  then  considered.  The 
action  was  there  declared  to  be  "one  of  the  most  difficult, 
dilatory,  and  expensive  ever  known  to  the  law."  It  is  easy 
to  understand  that  the  difficulties  and  disadvantages  of  the 
common-law  remedies  early  led  to  a  resort  to  courts  of  equi- 
ty for  relief,  and  suits  for  an  accounting  soon  became  a  well- 
established  head  of  equitable  jurisdiction. 

SAME— WHEN    EQUITY    WILL    ASSUME    JURISDIC- 
TION. 

254.  Equity  -will  assume  jurisdiction  in  matters  of 
account  where 

(a)  A  fiduciary  relation  exists  between  the  par- 
ties. 

Cb)  There  are  mutual  accounts  between  the  par- 
ties. 

(c)  There  are  circumstances  of  great  complica- 
tion, though  the  accounts  are  not  mutual.1 

The  existence  of  the  jurisdiction  in  equity  depends,  not  on 
the  absence  of  a  common-law  remedy,  but  upon  its  inade- 
quacy. In  most  cases  the  jurisdiction  of  courts  of  equity  in 

»  3  Hill  (N.  Y.)  62. 

J  254.     i  Snell,  Eq.  pp.  610-612;    Pom.  Eq.  Jur.  §  1421. 


518  KEMKDIES    8KEKING    PECUNIARY    RELIEF.  (Ch.   20 

actions  of  account  is  concurrent  with  that  of  courts  of  law; 2 
but  whether  or  not  a  court  of  equity  will  exercise  its  juris- 
diction is  a  question  to  be  determined  by  the  court  in  its 
discretion.8 

it  is  obvious  that  the  jurisdiction  of  equity  in  matters  of 
account  brought  a  great  variety  of  business  within  its  pur- 
view. As  incident  to  accounts,  equity  took  "cognizance  of 
the  administration  of  personal  assets  ;  consequently  of  debts, 
legacies,  the  distribution  of  the  residue,  and  the  conduct  of 
executors  and  administrators.  As  incident  to  accounts,  they 
also  took  concurrent  jurisdiction  of  titles,  and  all  questions 
relating  thereto ;  of  all  dealings  in  partnership,  and  many 
other  mercantile  transactions ;  and  so  of  bailiffs,  factors,  and 
receivers."  *  In  more  recent  times  the  equity  jurisdiction 
has  been  further  extended  to  the  dissolution  and  winding  up 
of  corporations,  chiefly  because  of  its  superior  procedure  as 
to  accounting. 

Fiduciary  Relationship. 

Equity  will  assume  jurisdiction  where  there  exists  a  fidu- 
ciary relationship  between  the  parties, — as  in  favor  of  bene- 
ficiaries against  trustees,5  including  actions  against  directors 
of  corporations.  An  action  for  an  accounting  between  part- 
ners is  peculiarly  one  for  the  cognizance  of  a  court  of  equi- 
ty, and  it  has  entertained  jurisdiction  in  such  cases  from 
time  immemorial.6  And  where  an  agent  has  been  intrusted 
with  his  principal's  money,  to  be  expended  for  a  specific  pur- 
pose, the  former  may  be  required1  to  account  in  equity.7 
But  the  existence  of  a  bare  agency  is  not  sufficient ;  there 
must  be  a  trust  or  fiduciary  relation  between  the  parties.8 
Wherever  the  relation  is  such  that  confidence  is  reposed  by 

»  Tillar  v.  Cook,  77  Va.  477;  Mitchell  v.  Manufacturing  Co.,  2 
Story,  (548,  Fed.  Cns.  No.  9,602;  Post  v.  Klmberly,  9  Johns.  (N.  Y.) 
470;  Baugher's  Appeal  (Pa.)  8  Atl.  841;  Holt  v.  Daniels,  61  Vt.  89, 
17  Atl.  78t>. 

»  Jewett  v.  Bowman,  29  N.  J.  Eq.  17ft, 

•  3  Bl.  Comm.  437. 

•  See  ante,  p.  34. 

«  King  v.  Barnes,  109  N.  T.  267,  286,  16  N.  E.  332;  Bishop  v. 
Bishop,  54  Conn.  232,  6  Atl.  426;  Couillard  v.  Eaton,  139  Mass.  105, 
28  N.  E.  579;  Christy's  Appeal,  92  Pa,  157. 

i  Marvin  v.  Brooks,  94  N.  Y.  71. 

•  Foley  v.  Hill,  2  H.  L.  Gas.  28;   Moxon  v.  Bright,  4  Ch.  App.  292. 


§    254)  ACCOUNTING.  519 

the  principal  in  his  agent,  and  the  matters  for  which  an  ac- 
counting is  sought  are  peculiarly  within  the  knowledge  of 
the  latter,  equity  will  assume  jurisdiction,8  because  in  such 
actions  "the  plaintiff  can  only  learn  from  the  discovery  of 
the  defendant  how  he  has  acted  in  the  execution  of  his  agen- 
cy." 10  But  ordinarily  the  agent  is  not  entitled  to  an  ac- 
counting from  his  principal,  since  it  is  his  duty  to  keep  an 
account  of  all  his  transactions  in  behalf  of  his  principal,  and 
he  therefore  does  not  require  a  discovery  from  him.  His 
remedy  is  complete  at  law.11 

Mutual  Accounts. 

In  cases  of  mutual  accounts  founded  in  privity  of  contract, 
equity  exercises  its  jurisdiction  without  any  limitation.12  It 
has  been  stated  that  a  mutual  account  "means  not  merely 
where  one  of  the  two  parties  has  received  money,  and  paid  it 
on  the  account  of  the  other,  but  where  each  of  two  parties 
has  received  and  paid  on  the  other's  account."  13 

Two  separate  accounts  between  A.  and  B. — A.'s  account 
consisting  of  goods  sold  to  B.,  and  B.'s  account  of  goods  sold 
to  A.,  or  of  payments  made  to  A. — do  not  constitute  mutual 
accounts.  They  are  separate,  independent  accounts,  and 
each  can  sue  on  his  own.  Nor  is  an  account  on  one  side 
consisting  of  payments  made  by  A.  for  B.  a  mutual  account, 
nor  one  of  goods  sold  by  A.  to  B.  Here,  also,  all  that  A. 
has  to  do  is  to  sue  on  his  own  account.  But,  if  A.  has  made 
payments  to  or  on  account  of  B.,  and  B.  has  also  made  pay- 
ments to  or  on  account  of  A.,  there  is  a  case  of  mutual  ac- 
count.1* 

Complicated  Accounts. 

A  court  of  equity  may  assume  jurisdiction  when  the  ac- 
counts are  complicated,  although  they  are  only  on  one  side 
The  reason  in  most  cases  for  the  exercise  of  such  jurisdic- 

•  Makepiece  v.  Rogers,  11  Jur.  (N.  S.)  215;  Moxon  v.  Bright,  4 
Ch.  App.  292;  Webb  v.  Fuller,  77  Me.  508,  1  Atl.  737;  Rippe  v.  Stog- 
dill,  Gl  Wis.  38,  20  N.  W.  645. 

10  Mackenzie  v.  Johnston,  4  Madd.  373. 

11  Padwick  v.  Stanley,  9  Hare,  627;    Lynch  v.  Willard,  6  John*. 
Ch.  (N.  Y.)  342;    Nash  v.  Burchard,  87  Mich.  85,  49  N.  W.  492. 

12  Story,  Eq.  Jur.  §  457. 

is  Phillips  v.  Phillips,  9  Hare,  471,  per  Sir  George  Turner,  V.  C. 
i*  Merwin,  Prin.  Eq.  587,  588. 


520  REMEDIES   SEEKING    PECUNIARY    RELIEF.  (Ch.   20 

tion  is  the  fact  that  a  court  of  law  cannot,  with  the  means  at 
its  disposal,  examine  and  adjust  an  account  which  is  com- 
plicated because  of  the  multiplicity  of  the  transactions  in- 
volved, or  of  other  circumstances.18  Even  if  an  action  at 
law  could  be  maintained  in  such  cases,  the  remedy  afforded 
would  not  be  as  available,  and  would  not  permit  of  as  con- 
venient and  accurate  an  investigation  as  by  a  suit  in  equity. 
Even  if  a  trial  by  jury  be  claimed  and  allowed,  the  court 
might,  in  a  suit  in  equity,  so  mold  the  issues,  and  direct  the 
course  of  the  trial,  as  to  avoid  many  of  the  difficulties  at- 
tending a  trial  at  common  law.1*  In  the  practice  acts  of 
many  of  the  states  provisions  have  been  made  for  the  ad- 
justment of  long  and  complicated  accounts  in  courts  of  law, 
and  the  reason  for  a  resort  to  equity  is  very  slight,  if  it  can 
be  said  to  exist  at  all.17  What  constitutes  complexity  is  a 
matter  addressed  to  the  discretion  of  the  court,  to  be  deter- 
mined according  to  the  circumstances  of  each  case.18 

SAME— DEFENSE  OF    STATED  ACCOUNT. 

265.  It  is  ordinarily  a  good  bar  to  a  suit  for  an 
account  that  the  parties  have  already,  in 
writing,  stated  and  adjusted  the  items  of 
the  account,  and  struck  a  balance.1 

Where  an  account  has  been  settled,  and  a  balance  struck, 
there  is  no  occasion  for  a  resort  to  equity,  as  the  remedy  at 
law  is  adequate.  It  necessarily  follows,  therefore,  that  a 

*»  O'Connor  v.  Spaight,  1  Schoales  &  L.  305,  where  Lord  Redes- 
dale  said:  "This  is  a  principle  on  which  courts  of  equity  constantly 
act  by  taking  cognizance  of  matters  which,  though  cognizable  at 
law,  are  yet  so  involved  with  a  complex  account  that  It  cannot  prop- 
erly be  taken  at  law." 

i«  Hallett  v.  Cumston,  110  Mass.  32;  Pierce  v.  Society,  145.  Mass. 
60,  12  N.  E.  858,  1  Am.  St.  Rep.  433. 

IT  Marvin  v.  Brooks,  94  N.  Y.  71,  80;  Uhlman  v.  Insurance  Co., 
109  N.  Y.  421,  433,  17  N.  E.  303,  4  Am.  St  Rep.  482. 

i«  White  v.  Hampton,  10  Iowa,  238,  245;  Woolley  v.  Osborne,  39 
N.  J.  Eq.  54;  Uhlman  v.  Insurance  Co.,  109  N.  Y.  421,  433,  17  N.  E. 
363,  4  Am.  St  Rep.  482;  Warner  T.  McMullln,  131  Pa.  370,  18  Atl. 
1056. 

§  255.  i  Snell.  Eq.  440;  Dawsoa  v.  Dawson,  1  Atk.  1;  Weed  v. 
SmuU,  7  Paige  (N.  Y.)  573. 


§    256)  ACCOUNTING.  521 

stated  account  is  a  bar  to  relief  in  equity,  unless  some  mat- 
ter is  shown  which  calls  for  the  interposition  of  a  court  of 
equity.  If  any  error,  mistake,  accident,  or  fraud  has  oc- 
curred which  would  vitiate  the  stated  account,  and  lessen  the 
balance  struck,  equity  will  not  suffer  it  to  be  conclusive  up- 
on the  parties,  but  will,  in  some  cases,  cause  the  account  to 
be  reopened  and  resettled.2  If  the  mistake,  accident,  or 
fraud  has  not  affected  all  the  items  of  the  transaction,  the 
court  may  allow  the  account  to  stand,  and  permit  the  com- 
plainant to  surcharge  and  falsify.8  To  surcharge  an  ac- 
count means  to  show  that  a  proper  credit  has  been  omit- 
ted ;  to  falsify  means  to  show  that  an  item  has  been  wrong- 
fully inserted.4  The  burden  of  proof  always  rests  upon  the 
party  who  is  permitted  to  surcharge  and  falsify.5 

A  stated  account  is  not  required  to  be  signed  by  the  par- 
ties. Its  acceptance  may  be  implied  from  the  circumstan- 
ces. The  court  will  generally  refuse  to  open  a  settled  ac- 
count after  a  long  time  has  elapsed,  except  in  cases  of  ap- 
parent fraud.6 

SAME— APPLICATION  OF  PAYMENTS. 

256.  The  following  rules  may  be  cited  by  which 
courts  of  equity  are  guided  in  taking  ac- 
counts : 

(a)  A  debtor  making  a  payment  may  appropriate 

it  to  the  discharge  of  any  debt  due  his  cred- 
itor. 

(b)  If,  at  the  time   of   payment,   there  is  no  ex- 

press or  implied  appropriation  by  the  debt- 
or, then  the  creditor  may  make  the  appro- 
priation.1 

*  Bankhead  v.  Alloway,  6  Cold.  (Term.)  66;    Conville  v.  Shook, 
144  N.  Y.  686,  39  N.  E.  405. 

s  Slee  v.  Bloom,  5  Johns.  Ch.   (N.  Y.)  366;   Johnson's  Ex'ra  r. 
Ketchum,  4  N.  J.  Eq.  364. 
«  Snell,  Eq.  441. 
«  Pit  v.  Cholmondeley,  2  Ves.  Sr.  565. 

•  Thompson  v.  Fisher.  13  Pa.  313;   Porter  r.  Patterson,  15  Pa.  229; 
Beers  v.  Reynolds,  12  Barb.  (N.  Y.)  288;    Brown  v.  Vandyke,  8  N. 
J.  Eq.  795,  55  Am.  Dec.  250. 

§  256.     *  Lysaght  v.  Walker,  5  Bligh  (N.  S.)  1,  28;    Brady  v.  Hill, 


622  REMKDIKS    SEEKING    i'J.CUNIARY    RELIEF.  (Ch.    20 

(c)  In  the  absence  of  an  appropriation  by  the 
parties,  the  law  will  make  the  appropria- 
tion according  to  the  order  of  the  items  of 
the  account ;  the  first  item  on  the  debit 
side  being  the  item  discharged  or  reduced 
by  the  first  item  on  the  credit  side. 

Where  there  have  been  running  accounts  between  debtor 
and  creditor,  and  various  payments  have  been  made,  and 
various  credits  given,  at  different  times,  it  often  becomes 
material  to  ascertain  to  what  debt  a  particular  payment  made 
by  a  debtor  is  to  be  applied. 

Appropriation  by  Debtor. 

The  first  rule  on  the  subject  is  that  the  debtor  may  ap- 
ply the  payment  to  the  discharge  of  whatever  debt  he 
pleases,2  and  the  creditor  has  no  right  to  insist  on  a  different 
application.1  The  debtor  may  make  the  direct  application 
in  express  terms,4  or  his  intention  so  to  do  may  be  inferred 
from  the  circumstances  of  the  transaction.  Thus,  where  one 
of  the  debts  owing  was  secured,  and  another  unsecured,  an 
intention  to  first  discharge  the  secured  debt  was  presumed.5 
The  debtor's  right  to  make  the  application  is  lost,  however, 
unless  exercised  at  the  time  of  payment.  If  he  does  not 
then  declare  on  what  account  the  money  is  paid,  he  cannot 
afterwards  do  so.* 

1  Mo.  315,  13  Am.  Dec.  503;  Johnson  v.  Thomas,  77  Ala.  3G7;  Perry 
v.  Bozeman,  67  Ga.  043;  National  Bank  of  Newburgh  v.  Bigler,  83 
N.  Y.  51;  Bird  v.  Davis,  14  N.  J.  Eq.  407;  Blackstone  Bank  v.  Hill, 
10  Pick.  (Mass.)  129. 

2  Clayton's  Case,  1  Mer.  572,  575;  Tayloe  v.  Sandiford,  7  Wheat 
13,  5  L.  Ed.  384;  Pickering  v.  Day,  2  Del.  Ch.  333,  3  Houst. 
474,  95  Am.  Dec.  291;  Coleman  v.  Slade,  75  Ga.  01;  Trentman  v. 
Fletcher,  100  Ind.  105;  Ross  v.  Crane,  74  Iowa,  375.  37  N.  W.  :»r>0; 
Reed  v.  Boardman,  20  Pick.  (Mass.)  441;  Jones  v.  Williams,  39  Wis. 
800. 

»  Anon.  Cro.  Eliz.  68;  Eylar  v.  Read,  60  Tex.  387;  Llbby  v.  Hop- 
kins. 104  U.  S.  303,  26  L.  Ed.  7G9;  Wetherell  v.  Joy,  40  Me.  325. 

«  Ex  pnrte  Imbert,  1  De  Gex  &  J.  152;  Stewart  v.  Keith  12  Pa. 
238;  Hausen  v.  Rounsavell,  74  111.  238;  Gay  v.  Gay,  5  Allen  (Mass.) 
157. 

»  Young  v.  English.  7  Beav.  10:  Holley  v.  Hardeman,  76  Ga.  328; 
Murx  v.  Srlnvum.  14  Or.  177.  12  Pac.  U.V.. 

«  Wilkinson  v.  Strrne,  9  Mod.  427;  Aderliolt  v.  Eiiibry,  78  Ala.  185; 
Long  v.  Miller,  93  N.  C.  233. 


§  256)  ACCOUNTING.  523 


Creditor  may  Appropriate. 

Unlike  the  debtor,  the  creditor  has  a  right  to  make  the 
application  at  any  time  after  payment  and  before  action 
brought  or  account  settled  between  him  and  his  debtor.7 
The  creditor's  right  to  make  such  application  is  not,  how- 
ever, unlimited.  He  may  not  indirectly  secure  payment  of 
an  illegal  debt  by  appropriating  a  general  payment  to  its  dis- 
charge.8 But  a  debt  barred  by  the  statute  of  limitations  is 
not  illegal  ;  and  if,  therefore,  a  general  payment  is  made, 
without  appropriation  by  the  debtor,  it  may  be  appropriated 
by  the  creditor  to  the  discharge  of  a  debt  barred  by  stat- 
ute.9 The  creditor  cannot,  however,  by  making  such  an  ap- 
propriation in  part  payment  of  the  debt,  take  it  out  of  the 
operation  of  the  statute.10 

Absence  of  Appropriation  ty  Either  Party. 

In  the  absence  of  appropriation  by  the  parties,  the  appro- 
priation will  be  made  according  to  the  order  of  the  items  of 
the  account.  This  proposition  was  decided,  and  is  known 
as  the  rule  in  Clayton's  Case,11  and  it  has  been  repeatedly 
followed  both  in  England  and  in  this  country.12  Some  of 
the  courts  have,  however,  manifested  a  tendency  to  follow 
the  Roman  rule,  which  appropriates  the  payment  to  the  most 

i  Philpott  v.  Jones,  2  Adol.  &  E.  41,  44;  Callahan  v.  Boazman,  21 
Ala.  246;  Moss  v.  Adams,  39  N.  C.  42,  51;  Johnson  v.  Thomas,  77 
Ala.  367;  Haynes  v.  Waite,  14  Cal.  446. 

«  Wright  v.  Laing,  3  Barn.  &  C.  165;  Turner  v.  Turner,  80  Va, 
379;  Gill  v.  Rice,  13  Wls.  549;  Phillips  v.  Moses,  65  Me.  70;  Rohan 
v.  Hanson,  11  Gush.  (Mass.)  44;  Greene  v.  Tyler,  39  Pa.  361;  Rich- 
ards v.  Columbia,  55  N.  H.  96. 

»  Mills  Y.  Fowkes,  5  Bing.  N.  C.  455,  461;  Annistead  v.  Brooke, 
18  Ark.  521. 

10  Nash  v.  Hodgson,  6  De  Gex,  M.  &  G.  474;   Armistead  v.  Brooke, 
18  Ark.  521.     See,  however,  Ayer  v.  Hawkins,  19  Vt.  26.     Applica- 
tion may  be  made  to  debt  unenforceable  under  statute  of  frauds. 
Haynes  v.  Nice,  100  Mass.  327,  1  Am.  Rep.  109;    Murphy  v.  Webber, 
61  Me.  478. 

11  1  Mer.  585. 

12  Pembertou  v.  Oakes,  4  Russ.  154,  168;    Bank  of  Scotland  v. 
Christie,  8  Clark  &  F.  214;    Pickering  v.  Day,  2  Del.   Ch.  333,  3 
Houst.  474,  95  Am.  Dec.  291;    Smith  v.  Loyd,  11  Leigh  (Va.)  512; 
Crompton  v.  Pratt,  105  Mass.  255;    Willis  v.  Mclntyre,  70  Tex.  34. 
7  S.  W.  594,  8  Am.  St.  Rep.  574;    Allen  v.  Culver,  3  Denio  (N.  Y.)  284; 
Thompson  v.  Bank,  113  N.  Y.  325,  21  N.  E.  57. 


524  REMEDIES   SEEKING    PECUNIARY    BELIEF.          (Ch.   20 

burdensome  debt.1'  And  where  there  are  several  debts  ow- 
ing to  a  creditor,  some  of  which  are  barred  by  the  statutes 
of  limitations  and  some  not,  and  he  does  not  expressly  ap- 
propriate a  payment  to  those  that  are  barred,  the  law  will 
appropriate  the  payment  to  those  not  barred.1*  In  this  re- 
spect, therefore,  the  law  appropriates  the  payment  to  the 
best  interest  of  the  debtor.  It  should  also  be  stated  that, 
where  a  debt  bearing  interest  stands  against  a  debtor,  gen- 
eral payments  made  by  him  are  first  to  be  applied  in  pay- 
ment of  interest,  any  balance  beyond  what  is  necessary  for 
that  being  then  credited  in  reduction  of  the  principal.16 

»»  Story,  Eq.  Jur.  8  459d;  Magarlty  v.  Shlpman,  82  Va.  784,  1  S.  E. 
109. 

»«  Nash  v.  Hodgson,  6  De  Gex,  M.  &  G.  474. 

"  Chase  T.  Box,  Freem.  Ch.  261;  People  v.  New  York  Co.,  5  Cow. 
(N.  Y.)  331;  Monroe  v.  Fohl,  72  Cal.  568,  14  Pac.  514;  Morgan  v. 
Railroad  Co.,  57  Mich.  430,  25  N.  W.  161,  26  N.  W.  365. 


§§  257-258)  SPECIFIC  PERFORMANCE.  525 

CHAPTER  XXL 

SPECIFIC  PERFORMANCE. 

257-258.  Definition— Equity  Jurisdiction. 

259.  Inadequacy  or  Impracticability  of  Damages. 

260.  The  Exercise  of  Jurisdiction  is  Discretionary. 

261.  Contracts  for  Performance  of  Personal  Acts. 

262.  Specific  Performance  is  Against  the  Person. 

263.  Defenses  in  Actions  for  Specific  Performance — Incapacity 

of  Parties. 

264.  Nouconclusion  of  the  Contract 

265.  Want  of  Mutuality. 

266.  Want  of  Fairness. 

267.  Hardship  of  the  Contract 

268.  Inadequacy  of  Consideration. 

269.  Lapse  of  Time. 

270.  Fraud  and  Mistake. 

271.  Uncertainty  of  Contract 

272.  Want  of  Title. 

273.  Default  of  Plaintiff. 

274.  Failure  to  Perform  within  the  Time. 

275.  Statute  of  Frauds  as  a  Defense. 
276-277.    Specific  Performance  with  a  Variance^ 

DEFINITION— EQUITY  JURISDICTION. 

267.  Specific  performance  may  be  defined  as  a  ju- 
dicial order  that  a  legal  contract  be  carried 
into  effect.1 

258.  The  equity  to  compel  specific  performance 
arises  where  a  legal  contract  has  been  in- 
fringed, and  the  remedy  at  law  by  an 
award  of  damages  is  inadequate. 

The  sole  redress  which  the  common  law  affords  for  breach 
of  contract  to  the  disappointed  party  is  an  award  of  dam- 
ages. This,  in  effect,  requires  the  party  violating  the  con- 
tract to  either  perform  the  contract  at  his  sole  pleasure,  or 
to  pay  damages  for  a  failure  so  to  do.  But  courts  of  equity 
have  deemed  such  a  course  wholly  inadequate  for  the  pur- 
poses of  justice;  and,  considering  a  breach  of  contract  a 

§£  257-258.     1  Underh.  Eq.  p.  196. 


626  SPECIFIC    PERFORMANCE.  (Ch.   21 

violation  of  moral  and  equitable  duty,  they  have  not  hesitat- 
ed to  interpose  and  require  from  the  conscience  of  the  of- 
fending party  a  strict  performance  of  what  he  cannot  refuse 
without  manifest  wrong  or  fraud.2 

The  jurisdiction  of  courts  of  equity  to  decree  a  specific 
performance  of  a  contract  is  of  very  ancient  origin,  if  it  is 
not  coeval  with  the  existence  of  such  courts.8  It  may  be 
distinctly  traced  back  to  the  reign  of  Edward  IV. ;  for  in  the 
Year  Book  of  8  Edw.  IV.  4  (b),  it  was  expressly  recognized 
by  the  chancellor  as  a  clear  jurisdiction.4  The  ground  for 
the  exercise  of  this  jurisdiction  is  the  inadequacy  of  the  rem- 
edies afforded  by  courts  of  law,  which,  as  said  before,  can 
only  relieve  the  injured  party  by  compensation  in  damages. 

INADEQUACY  OB  IMPRACTICABILITY  OF  DAMAGES. 

259.  A  court  of  equity  •will  decree  the  specific  per- 
formance of  a  contract,  "where 

(a)  A  breach  of  contract  cannot  be  adequately 

recompensed  by  an  award  of  damages, 
since  the  subject-matter  of  the  contract  is 
specific,  and  its  exact  counterpart  cannot 
be  purchased  in  the  open  market. 

(b)  It  is  impracticable  to  compensate  the  injured 

party  by  an  award  of  damages,  since  the 
special  features  connected  with  the  subject- 
matter  of  the  contract,  or  with  the  terms 
thereof,  or  with  the  relation  of  the  parties 
thereto,  render  it  impossible  to  arrive  at 
a  legal  measure  of  damages.1 

«  Story,  Eq.  Jur.  §  714. 

«  1  Spence,  Eq.  Jur.  645;  Union  Pac.  R.  Co.  r.  Railroad  Co.,  163 
U.  S.  600,  16  Sup.  Ct.  1173,  41  L.  Ed.  205,— where  Chief  Justice  Fuller 
says:  "The  jurisdiction  of  courts  of  equity  to  decree  the  specific 
performance  of  agreements  is  of  very  ancient  date,  and  rests  on  the 
ground  of  the  Inadequacy  and  incompleteness  of  the  remedy  at  law. 
Its  exercise  prevents  the  intolerable  travesty  of  Justice  involved  In 
permitting  parties  to  refuse  performance  of  their  contracts  at  pleas- 
ure by  electing  to  pay  damages  for  their  breach." 

«  Hnlsey  v.  Grant,  i:i  VPS.  7t;:    1  FoubL  Eq.  book  1,  c.  1,  S  5,  note. 

I  259.     *  1'uuj.  Eq.  Jur.  8  1401. 


§  259)       INADEQUACY  OB  IMPRACTICABILITY  OF  DAMAGES.         527 

Land  Contracts. 

The  most  frequent  use  of  the  equity  of  specific  perform- 
ance is  in  the  case  of  contracts  for  the  sale  of  real  property. 
One  who  has  contracted  to  purchase  a  particular  tract  of 
land  cannot  get  its  exact  counterpart  anywhere,  with  all  its 
surroundings  and  conveniences.  It  is  a  unique  thing,  not 
capable  of  being  duplicated.  The  rule,  therefore,  is  that, 
where  a  contract  in  writing  respecting  real  property  is  en- 
tered into  between  competent  parties,  and  is  in  its  nature  and 
circumstances  unobjectionable,  it  is  as  much  a  matter  of 
course  for  a  court  of  equity  to  decree  specific  performance  as 
it  is  for  a  court  of  common  law  to  give  damages  for  the 
breach  of  such  a  contract.3 

Contracts  Respecting  Chattels. 

A  contract  for  the  sale  and  delivery  of  chattels  possessing 
an  easily  ascertainable  market  value — such  as  articles  of 
merchandise,  corn,  or  wheat — is  very  different  from  a  con- 
tract for  the  sale  of  lands,  since  damages  awarded  for  breach 
of  such  a  contract  will  enable  the  plaintiff  to  procure  other 
articles  as  good  in  all  respects  as  those  for  which  he  con- 
tracted. The  legal  remedy,  therefore,  being  adequate,  there 
is  generally  no  ground  for  the  exceptional  and  discretionary 
interference  of  equity  in  such  contracts.8 

Special  circumstances  may,  however,  induce  the  court  to 
decree  specific  performance  of  such  contracts.  When  chat- 
tels consist  of  works  of  art,  or  valuable  articles  of  virtu,  or 
heirlooms,  or  the  like,  things  unique  in  themselves,  and  prac- 
tically incapable  of  being  replaced,  a  contract  in  relation  to 
them  will  be  specifically  enforced.4  On  the  same  principle 

2  Hall  v.  Warren,  9  Ves.  605,  608;  Page  v.  Martin,  46  N.  J.  Eq. 
585,  589,  20  Atl.  46;  Jackens  v.  Nicholson,  70  Ga.  200;  Popplein  v. 
Foley,  61  Md  381;  Oonaway  v.  Sweeney,  24  W.  Va,  643,  649;  En- 
sign v.  Kellogg,  4  Pick.  (Mass.)  5;  Throckmorton  v.  Davidson,  68 
Iowa,  643,  27  N.  W.  794;  McClure  v.  Otrich,  118  111.  320,  8  N.  E.  784; 
Bogan  v.  Daughdrill,  51  Ala.  312. 

s  Ouddee  v.  Rutter,  5  Vin.  Abr.  538,  pi.  21,  1  White  &  T.  Lead. 
Cas.  Eq.  (4th  Am.  Ed.)  1063;  Johnson  v.  Brooks,  93  N.  Y.  337, 
843;  Dilburn  v.  Youngblood,  85  Ala.  449,  5  South.  175;  Jones  v. 
Newhall,  115  Mass.  244,  15  Am.  Rep.  97;  Kimball  v.  Morton,  5  N.  J. 
Eq.  26,  53  Am.  Dec.  621;  Foil's  Appeal,  91  Pa.  434,  3G  Am.  Rep.  671. 

*  Thus,  a  unique  horn,  known  as  the  "Pusey  Horn,"  was  spe- 
cifically ordered  to  be  delivered  up.  Pusey  v.  Pusey,  1  Vern.  273, 
1  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.)  1109.  And  so  wita  a 


528  SPECIFIC   PERFORMANCE.  (Ch.   21 

the  court  will  order  the  delivery  of  specific  deeds  and  writ- 
ings to  the  persons  legally  entitled  thereto.6 

In  England,  a  contract  for  the  sale  of  shares  of  corporate 
stock  will  be  specifically  enforced,  because  such  shares  are 
limited  in  number,  and  not  always  obtainable.*  With  us 
such  contracts  will  not  be  specifically  enforced,  because  cor- 
porate stock  is  ordinarily  purchased  in  the  market,  and  com- 
pensation in  damages  affords  an  adequate  remedy.7  And, 
for  similar  reasons,  contracts  for  the  sale  of  governmental 
securities  or  bonds  will  not  be  specifically  enforced.8 

Agreements  relating  to  patents  for  inventions  afford,  per- 
haps, the  best  illustration  of  equitable  interference  in  cases 
relating  to  personalty.  Such  agreements  will  be  specifically 
enforced,  almost  as  much  as  a  matter  of  course  as  contracts 
concerning  real  property.* 

Impracticability  of  Legal  Remedy. 

There  are  other  reasons  than  the  inadequacy  of  an  award 
of  damages  to  do  complete  justice  to  the  injured  party  for 
the  exercise  of  the  equitable  jurisdiction  of  specific  perform- 
ance. There  are  contracts,  the  damages  for  the  breach  of 
which  are  impossible  to  determine.  Equity  will  in  such  cases 
decree  a  specific  performance.  Instances  of  such  cases  are 
where  the  plaintiff  has  not  performed  all  the  conditions  of  a 

curious  Greek  altar  piece.  Duke  of  Somerset  v.  Cookson,  3  P.  Wms. 
389,  1  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.)  1110.  See,  also, 
Fells  v.  Read,  3  Ves.  70;  Lloyd  v.  Loaring,  6  Ves.  773;  Williams 
v.  Howard.  7  N.  C.  74;  McGowin  v.  Remington,  12  Pa.  56,  51  Am. 
Dec.  584. 

B  Brown  v.  Brown,  1  Dickens,  62;  Gibson  v.  Ingo,  6  Hare,  112; 
Bnum's  Appeal,  113  Pa.  58,  4  Atl.  461;  Cowles  v.  Whitman,  10  Conn. 
121,  25  Am.  Dec.  60;  Pattlson  v.  Sklllman,  34  N.  J.  Eq.  344. 

«  Duncuft  v.  Albrecht,  12  Sim.  1S9;  I'oole  v.  Middleton,  29  Beav. 
646;  Shaw  v.  Fisher,  2  De  Gex  &  S.  11. 

t  Eckstein  v.  Downing,  64  N.  H.  248,  9  Atl.  626,  10  Am.  St.  Rep. 
404;  A  very  v.  Ryan,  74  Wls.  591,  43  N.  W.  317,  4  L.  R.  A.  232; 
Noyes  v.  Marsh,  123  Mass.  286.  The  rule  Is  otherwise  where  stock 
cnnnot  be  obtained  In  the  market  Johnson  v.  Brooks,  93  N.  Y.  337; 
Frue  v.  Houghton,  6  Colo.  318. 

•  Cuddec  T.  Rutter,  5  Vln.  Abr.  538,  pi.  21,  1  White  &  T.  Lead. 
Cas.  Eq.  1063;    Ross  v.  Railway  Co.,  Woolw.  26,  Fed.  Cas.  No.  12,080. 

•  Whitney  v.  Burr,  115  111.  289,  3  N.  E.  434;    Hapgood  v.  Rosen- 
•tock  (C.  C.)  23  Fed.  86;   Adams  v.  Messinger,  147  Mass.  185,  17 
N.  E.  491;   Hull  v.  Pltrat  (O.  C.)  45  Fed,  »4;   Reese's  Appeal,  122  Pa, 
392,  15  Atl.  807. 


§   260)        EXERCISE   OF   JURISDICTION    IS    DISCRETIONARY.          529 

contract  on  his  part,  and  cannot,  therefore,  maintain  an  ac- 
tion at  law,  but  which  equity  may  still  treat  as  binding,  and 
enforce.10  And  verbal  contracts  concerning  land,  which  are 
invalid  at  law,  but  which  have  been  in  part  performed,  may 
be  enforced  in  equity.11 

Another  illustration  of  the  application  of  this  rule  is  where 
the  contract  was  for  the  sale  of  debts  proved  under  two  com- 
missions of  bankruptcy,  and  a  court  of  equity  granted  a  de- 
cree of  specific  performance,  because  to  compel  the  plaintiff 
to  accept  damages  would  be,  in  effect,  to  make  him  sell  the 
dividends,  which  were  of  unascertainble  value,  at  a  conjec- 
tural price.1* 


THE  EXERCISE  OP  JURISDICTION  IS  DISCRE- 
TIONARY. 

260.  The  enforcement  of  specific  performance  of  a 
contract  is  discretionary  -with  the  court, 
and  performance  will  not  be  decreed  where 
it  will  result  in  great  hardship  and  injus- 
tice to  one  party  without  any  considerable 
benefit  to  the  other,  or  in  a  case  where  the 
public  interest  would  be  prejudiced  thereby.1 

While  the  enforcement  of  specific  performance  is  a  mat- 
ter of  discretion,  it  is  one  of  sound  judicial  discretion,  con- 
trolled by  well-defined  principles  of  equity,  and  exercised 
upon  a  consideration  of  all  the  circumstances  of  each  par- 
ticular case.2  Where  the  contract  is  in  writing,  is  certain  in 

lOMortlock  v.  Buller,  10  Ves.  292,  305,  306;  Day  v.  Hunt,  112; 
N.  Y.  191,  195,  19  N.  E.  414, — where  the  court  says:  "The  very  fact 
that  the  plaintiff  has  not  strictly  performed  his  part  [of  a  contract], 
and  so  is  without  remedy  at  law,  is  frequently  a  sufficient  reason 
for  the  interposition  of  courts  of  equity,  where  relief  is  given,  not- 
withstanding the  lapse  of  time,  according  to  the  actual  merits  of 
the  case." 

11  Gough  v.  Crane,  3  Md.  Ch.  119. 

12  Adderley  v.  Dixon,  1  Sim.  &  S.  GOT. 

§  260.     i  Conger  v.  Railroad  Co.,  120  N.  Y.  29,  23  N.  E.  983. 
2  Hennessey  v.  Woolworth,  128  U.  S.  438,  9  Sup.  Ct.  109,  32  L.  Ed. 
600;    Day  v.  Hunt,  112  N.  Y.  191,  19  N.  E.  414;    Woods  y.  Evans. 

EATON.EQ.— 34 


530  SPECIFIC   PERFORMANCE.  (Ch.    21 

its  terms,  is  for  a  valuable  consideration,  and  is  capable  of 
being  enforced  without  hardship  to  either  party,  it  is  as  in- 
cumbent upon  a  court  of  equity  to  decree  its  specific  per- 
formance as  upon  a  court  of  law  to  award  a  judgment  of 
damages  for  its  breach.8  In  the  exercise  of  its  discretion, 
the  court  must  determine  whether  the  contract  is  equitable, 
and  whether  its  enforcement  would  be  conducive  to  a  proper 
administration  of  justice.  When  this  is  determined  the  dis- 
cretion of  the  court  ceases,  and  its  decree  must  issue.4 

Before  granting  its  decree,  the  court  must  be  satisfied  not 
only  of  the  existence  of  a  valid  contract,  but  that  its  en- 
forcement would  be  equitable  and  just.5  As  was  said  by 
Justice  Field:  "In  general,  it  may  be  said  that  the  spe- 
cific relief  will  be  granted  when  it  is  apparent  from  a  view 
of  all  the  circumstances  of  the  particular  case  that  it  will  sub- 
serve the  ends  of  justice ;  and  that  it  will  be  withheld  when, 
from  a  like  view,  it  appears  that  it  will  produce  hardship  or 
injustice  to  either  of  the  parties.  It  is  not  sufficient,  as 
shown  by  the  cases  cited,  to  call  forth  the  equitable  inter- 
position of  the  court,  that  the  legal  obligation  under  the  con- 
tract to  do  the  specific  thing  desired  may  be  perfect.  It  must 
also  appear  that  the  specific  enforcement  will  work  no  hard- 
ship or  injustice,  for,  if  that  result  would  follow,  the  court 
will  leave  the  parties  to  their  remedies  at  law,  unless  the 
granting  of  the  specific  relief  can  be  accompanied  with  con- 
ditions which  will  obviate  that  result."  * 

113  111.  186.  190,  55  Am.  Rep.  409;  Combs  v.  Scott,  76  Wls.  662,  667, 
45  N.  W.  532;  Willard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed.  501. 

«  Pom.  Eq.  Jur.  §  1404. 

4  Godwin  v.  Collins,  3  Del.  Oh.  189,  201. 

»  Ikerd  v.  Beavers,  106  Ind.  483,  483,  7  N.  E.  326;  Simon  v.  Wlldt, 
81  Ky.  157,  165;  Trustees  of  Columbia  College  v.  Thacher,  87  X.  Y. 
311,  317,  41  Am.  Rep.  305;  Conger  v.  Railroad  Co.,  120  N.  Y.  29,  23 
N.  E.  083.  As  was  said  In  the  case  of  Mansfield  v.  Sherman,  81 
Me.  365,  367,  17  Atl.  300:  "However  strong,  clear,  and  emphatic  the 
language  of  the  contract,  however  plain  the  right  at  law,  if  a  spe- 
cific performance  would,  for  any  reason,  cause  a  result  harsh,  In- 
equitable, or  contrary  to  good  conscience,  the  court  should  refuse 
•uch  a  decree,  and  leave  the  parties  to  their  remedies  at  law." 

•  Willard  v.  Tayloe,  8  Wall.  557,  567,  19  L.  Ed.  501. 


§  261)      CONTRACTS  FOR  PERFORMANCE  OF  PERSONAL  ACTS.       531 

CONTRACTS  TOE  PERFORMANCE  OP  PERSONAL 

ACTS. 

261.  A  contract  requiring  the  performance  of  per- 
sonal acts  will  not,  as  a  rule,  be  specifically 
enforced. 

The  relation  established  by  a  contract  of  hiring  and  serv- 
ice is  of  so  personal  and  confidential  a  character  that  it 
would  be  impossible  for  a  court  of  equity  to  specifically  en- 
force such  a  contract  against  an  unwilling  party  with  any 
hope  of  ultimate  and  real  success.1  The  same  may  be  said 
as  to  a  contract  of  agency.2  And  for  a  somewhat  similar 
reason  an  agreement  to  sell  the  good  will  of  a  business  de- 
pending on  personal  considerations  will  not  be  enforced ;  8 
but,  where  the  good  will  is  entirely  or  mainly  connected  with 
the  premises,  a  contract  for  the  sale  of  the  good  will  and 
premises  is  enforceable.4 

Contracts  to  perform  certain  acts  relating  to  land — such 
as  contracts  to  build  and  repair  buildings  thereon — are  of  a 
somewhat  special  nature ;  but,  as  a  general  rule,  they  will 
not  be  specifically  enforced,  because  the  legal  remedy  is 
usually  sufficient,  and  it  would  be  almost  impossible  for  tlie 
court  to  carry  out  its  decree  if  made.5  Nevertheless  the 
court  has  jurisdiction  to  decree  the  performance  of  certain 
works  where  damages  would  not  be  an  adequate  remedy. 
For  instance,  it  has  been  held  that  a  contract  made  by  a  rail- 
road company  to  build  a  crossing  over  its  railway  will  be 
specifically  enforced.6 

§  261.  i  Rigby  v.  Connol,  14  Ch.  Div.  487;  De  Francesco  v.  Bar- 
num,  45  Oh.  Div.  430;  Iron  Age  Pub.  Co.  v.  Telegraph  Co.,  83  Ala. 
498,  3  South.  449,  3  Am.  St.  Rep.  758;  Win.  Rogers  Mfg.  Co.  v. 
Rogers,  58  Conn.  356,  20  Atl.  467,  7  L.  R.  A.  779;  Lindsay  v.  Glass, 
119  Ind.  301,  21  N.  E.  897;  Wakeham  v.  Barker,  82  Cal.  46,  22  Pac. 
1131;  Campbell  v.  Rust,  85  Va.  653,  8  S.  E.  664. 

2  Chinnoek  v.  Sainsbury,  30  Law  J.  Ch.  409. 

«  May  v.  Thomson,  20  Ch.  Div.  705. 

4  Cruttwell  v.  Lye,  17  Ves.  335. 

o  Errington  v.  Aynesly,  2  Brown,  Ch.  341;  Middleton  v.  Green- 
wood, 2  De  Gex,  J.  &  S.  142;  Beck  v.  Allison,  56  N.  Y.  366,  15  Am. 
Rep.  430;  Oregonian  R.  Co.  v.  Navigation  Co.  (C.  C.)  37  Fed.  733; 
Ross  v.  Railway  Co.,  Woolw.  26,  Fed.  Cas.  No.  12,080. 

«  Post  v.  Railroad  Co.,  123  N.  Y.  581,  26  N.  E.  7.    See,  also,  Stuyve- 


532  SPECIFIC   PERFORMANCE.  (Ch.   21 

Some  of  the  English  cases  hold  that  specific  performances 
\vill  not  be  decreed  of  a  contract  which  imposes  on  the 
contractor  the  performance  of  continuous  duties  extending 
over  a  long  period  of  time,  since  the  court  cannot  under- 
take to  see  that  its  decree  is  carried  into  effect ; 7  but  this 
proposition  has  been  disregarded  in  several  recent  Ameri- 
can decisions.8 

Other  Instances  of  Contracts  not  Enforceable. 

A  court  of  equity  will  not  enforce  a  contract  which  is  in 
its  language  revocable  by  the  defendant,  for  its  interference 
in  such  a  case  would  be  idle,  since  what  it  had  done  might 
be  instantly  undone  by  one  of  the  parties.9  It  is  on  this 
principle  that  equity  refuses  to  interfere  in  case  of  con- 
tracts to  enter  into  partnership  which  do  not  specify  the 
duration  of  the  partnership,  since  that  relation,  unless  other- 
wise provided,  is  dissoluble  at  the  will  of  either  party,10  but, 
if  the  partnership  is  to  continue  fdr  a  fixed  term  of  years, 
and  there  have  been  acts  of  particular  performance,  the 
court  will  exercise  its  powers,  but  there  must  be  facts  shown 
which  would  render  indispensable  the  interposition  of  eq- 
uity.11 

snnt  v.  Mayor,  etc.,  11  Paige  (N.  Y.)  414;  Gregory  v.  Ingwersen,  32 
N.  J.  Eq.  199;  Storer  v.  Railway  Co.,  2  Younge  &  C.  Ch.  48. 

T  Blackett  v.  Bates,  1  Ch.  App.  117;  Powell  D.  S.  C.  Co.  v.  Rail- 
way Co.,  9  Ch.  App.  331. 

s  Joy  v.  City  of  St.  Louis,  138  U.  S.  11,  47,  11  Sup.  Ct.  243,  34  L. 
Ed.  843  (contract  prescribing  terms  by  which  one  railroad  company 
may  run  its  trains  over  track  of  another  company  specifically  en- 
forced); Cornwall  &  L.  R.  Co.'s  Appeal,  125  Pa.  232,  17  Atl.  427  (con- 
tract requiring  all  trains  to  stop  within  200  feet  of  a  crossing  spe- 
cifically enforced);  South  &  N.  A.  R.  Co.  v.  Railroad  Co.,  98  Ala. 
400,  13  South.  G82,  39  Am.  St.  Rep.  74  (contract  for  construction, 
repair,  and  use  of  railroad  track  enforced);  Union  Pac.  Ry.  Co.  v. 
Railway  Co.,  2  C.  C.  A.  174,  51  Fed.  309;  Louisville  &  N.  R.  Co.  v. 
Railroad  Co.,  92  Tenn.  681,  22  S.  W.  920.  It  should  be  noted,  how- 
ever, that  In  all  these  cases  the  courts  were  controlled  in  some 
measure,  at  least,  by  the  interest  of  the  public  in  questions  of  trans- 
portation. 

•  Fry,  Spec.  Perf.  §  94. 

»o  Hercy  v.  Birch,  9  Ves.  357;  Scott  v.  Rayment,  L.  R.  7  Eq.  112; 
BUCK  v.  Smith,  29  Mich.  106,  18  Am.  Rep.  84;  Meason  v.  Kaine,  63 
Pu.  335. 

11  Anonymous,  2  Ves.  Sr.  620:  England  v.  Curling,  8  Beav.  129; 
Dowus  v.  Collins,  0  Hare,  418,  437. 


•§  262)       SPECIFIC  PERFORMANCE  IS   AGAINST  THE  PERSON.  533 

Contracts  to  refer  disputed  matters  to  arbitrators  will  not 
be  specifically  enforced.12  The  award  of  the  arbitrators, 
however,  is  treated  as  a  contract  between  the  parties,  and 
will  be  enforced  where  a  contract  would  be  enforced,  but 
not  otherwise.18  Where  the  award  is  for  the  performance 
of  a  thing  in  specie, — as  to  convey  an  estate  or  to  assign 
securities, — it  will  be  enforced ; 14  but  equity  will  not  enforce 
an  award  to  pay  money.16  A  court  of  equity  will  not  specifi- 
cally enforce  a  contract  to  lend,  or  to  borrow,  or  to  pay 
money,16  but  it  will  decree  specific  performance  of  an  agree-' 
ment  to  give  security  in  consideration  of  money  due.11  Con- 
tracts for  insurance  have  been  enforced  even  after  loss.11 


SPECIFIC  PERFORMANCE  IS  AGAINST  THE 
PERSON. 

262.  The  jurisdiction  to  decree  the  specific  perform- 
ance of  a  contract  is  exercised  against 
the  person  of  the  defendant  on  the  equities 
arising  from  the  contract.1 

i»  Street  v.  lligby,  6  Ves.  815;  Cooke  v.  Cooke,  L.  R.  4  Eq.  77; 
Halfhide  v.  Penning,  2  Brown,  Ch.  337;  Noyes  v.  Marsh,  123  Mass. 
286;  Smith  v.  Railroad  Co.,  36  N.  H.  487;  Hopkins  v.  Gilrnan,  22 
Wis.  476.  In  England  such  contracts  are  now  enforceable  by  stat- 
ute. 17  &  18  Viet.  c.  125,  §  11;  Seliginann  v.  Le  Boutillier,  L.  R. 
1  C.  P.  681;  Willesford  v.  Watson,  L.  R.  14  Eq.  572. 

is  Blackett  v.  Bates,  1  Ch.  App.  117;  Caldwell  v.  Dickinson,  13 
Gray  (Mass.)  365;  Story  v.  Railroad  Co.,  24  Conn.  94;  McNeil  v. 
Magee,  5  Mason,  244,  Fed.  Cas.  No.  8,915;  Kirksey  v.  Fike,  27  Ala, 
383,  62  Am.  Dec.  768. 

i*  Norton  v.  Mascall,  2  Vern.  24,  and  cases  cited  in  preceding  note. 

IB  Hall  v.  Hardy,  3  P.  Wms.  190;  Howe  v.  Nickerson,  14  Allen 
(Mass.)  400;  Turpin  v.  Banton,  Hardin  (Ky.)  320. 

is  Sichel  v.  Mosenthal,  30  Beav.  371;  Rogers  v.  Challis,  27  Beav. 
175;  Crampton  v.  Varna  R.  Co.,  7  Ch.  App.  562;  Bradford,  E.  &  C. 
R.  Co.  v.  Railroad  Co..  123  N.  Y.  327,  25  N.  E.  499,  11  L.  R.  A.  116; 
Pierce  v.  Plumb,  74  111.  326,  330,  331. 

IT  Ashton  v.  Corrigan,  L.  R.  13  Eq.  76;  Triebert  v.  Burgess,  11 
Md.  452;  Rothholz  v.  Schwartz,  46  N.  J.  Eq.  477,  19  Atl.  312,  19  Am. 
St.  Rep.  409;  Taylor  v.  Eckersley,  2  Ch.  Div.  302,  5  Ch.  Div.  740. 
Contra,  City  Fire  Ins.  Co.  v.  Olmsted,  33  Conn.  476;  Johnson  v. 
Hoover,  72  Ind.  395. 

i«  Haden  v.  Association,  80  Va.  683;  Baile  v.  Insurance  Co.,  73 
Mo.  371;  Tayloe  v.  Insurance  Co.,  9  How.  390,  13  L.  Ed.  187;  Cove- 
nant Mut.  Ben.  Ass'n  v.  Sears,  114  111.  108,  29  N.  E.  480. 

i  262.     i  Fry,  Spec.  Perf.  §  123. 


534  SPECIFIC   PERFORMANCE.  (Ch.   21 

As  a  result  of  this  principle,  where  the  defendant  is  a 
person  over  whom  a  court  of  equity  has  no  jurisdiction, 
there  can  be  no  relief.  The  maxim,  "Equity  acts  against 
the  person"  ("^Equitas  agit  in  personam"),  applies  in  such 
cases;  so  that,  if  the  person  is  within  the  jurisdiction  of 
the  court,  it  is  no  objection  to  specific  performance  that 
the  subject-matter  which  the  contract  controls  is  without 
that  jurisdiction.2  In  the  case  of  Massie  v.  Watts  the  su- 
preme court  of  the  United  States  sustained  a  bill  filed  in 
the  circuit  court  of  Kentucky  to  compel  a  conveyance  of 
land  situated  in  Ohio,  and  in  the  case  of  Penn  v.  Lord  Balti- 
more, Lord  Chancellor  Hardwicke  held  that  a  contract  re- 
specting boundaries  between  the  colonies  of  Pennsylvania 
and  Maryland  could  be  specifically  enforced  in  the  English 
court  of  chancery. 


DEFENSES   IN    ACTIONS    FOB    SPECIFIC    PERFORM- 
ANCE— INCAPACITY   OF  PARTIES. 

263.  The  incapacity  to  contract  of  either  of  the 
contracting  parties  furnishes  ground  on 
which  the  defendant  may  resist  specific  per- 
formance. 

The  question  of  the  incapacity  to  contract,  as  raised  in 
actions  for  specific  performance,  is  identical  with  the  ques- 
tion as  discussed  at  common  law,  and  therefore  it  has  no 
peculiar  relation  to  the  jurisdiction  of  equity  in  relation  to 
specific  performance ;  no  particular  reference,  therefore,  will 
be  made  to  such  question  in  this  work.  An  infant  has  no 
general  power  to  contract,  and  generally  can  neither  sue 
nor  be  sued  on  a  contract  into  which  he  has  purported  to 
enter.  As  regards  coverture,  the  contracts  of  married  wo- 
men respecting  their  separate  property  are  enforceable 
against  them  and  in  their  favor.  Lunatics  cannot  bind 
themselves  by  contract,  except  during  lucid  intervals,  dur- 
ing which  times  contracts  entered  into  by  them  are  as  bind- 

«  Massle  v.  Watts,  6  Cranch,  148,  3  L.  Ed.  181;   Davis  v.  Parker, 
34  Allen  (Mass.)  94;    Brown  v.  Desmond,  100  Mass.  267;    Burrell  v. 
Root,  40  N.  Y.  490;    Bailey  v.  Ryder,  10  N.  Y.  363;    Stephenson  v. 
,  Davis,  56  Me.  73;   Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444. 


§  264)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        535 

ing  as  if  made  by  a  person  of  sound  mind.1  In  judging  of 
insanity,  courts  of  equity  are  governed  by  the  same  prin- 
ciples as  courts  of  common  law. 


SAME— NONCONCLTTSION  OP  THE  CONTRACT. 

264.  Specific  performance  cannot  be  had  unless  the 
contract  has  been  actually  concluded. 

So  long  as  the  parties  are  only  in  negotiation,  there  is 
no  contract  which  can  be  specifically  enforced.1  It  is  some- 
times difficult,  however,  to  distinguish  mere  negotiations 
from  the  contract  itself.  The  law  on  this  subject  is  thus 
summarized  by  Mr.  Fry : 2  "The  burden  of  proving  that 
there  is  a  concluded  contract  rests  on  the  plaintiff.  A  bind- 
ing contract  may  be  constituted  by  the  proposal  of  one  party 
and  the  acceptance  of  the  other,  but  the  proposal  has  no 
validity  without  the  acceptance.  Such  acceptance  must  be 
plain,  unequivocal,  and  unconditional,  without  variance  be- 
tween it  and  the  proposal,  and  it  must  be  completed  without 
unreasonable  delay."  With  respect  to  the  immediate  question 
as  to  whether  a  contract  has  been  concluded  by  correspond- 
ence, the  following  rule  has  been  stated:  Where  a  com- 
pleted contract  can  be  concluded  from  a  correspondence  be- 
tween the  parties,  the  court  will  grant  specific  performance, 
although  it  was  agreed  that  the  terms  should  be  embodied 
in  a  formal  contract,  unless  there  was  a  condition  suspend- 
ing the  final  assent  until  the  execution  of  the  formal  con- 
tract.8 

§  263.     i  Hall  T.  Warren,  9  Ves.  605. 

§  264.  i  Duff  v.  Hopkins  (D.  O.)  33  Fed.  599;  Mayer  v.  McCreery, 
119  N.  Y.  434,  23  N.  E.  1045;  Brown  v.  Finney,  53  Pa.  373;  Wrls- 
ten  v.  Bowles,  82  Cal.  84,  22  Pac.  1136;  Domestic  Telegraph  &  Tele- 
phone Co.  v.  Telegraph  Co.,  39  N.  J.  Eq.  150,  165;  Wardell  v.  Wil- 
liams, 62  Mich.  50,  28  N.  W.  796,  4  Am.  St.  Rep.  814. 

2  Fry,  Spec.  Perf.  §  278. 

s  Rossiter  v.  Miller,  3  App.  Cas.  1124;  Sanders  v.  Fruit  Co.,  144 
N.  Y.  209,  39  N.  E.  75,  43  Am.  St.  Rep.  757,  25  N.  Y.  Supp.  257,  29 
I*.  R.  A.  431,  Keener,  Cas.  Cont.  233. 


536  SPECIFIC    PERFORMANCE.  (Ch.    21 


SAME— WANT  OF  MUTUALITY. 

265.  Whenever  from  personal  incapacity  to  con- 
tract, the  nature  of  the  contract,  or  from 
any  other  cause,  the  contract  is  incapable 
of  being  enforced  against  one  party,  such 
party  is  equally  incapable  of  enforcing  it 
against  the  other.1 

Mutuality  of  consent  is  essential  to  the  validity  of  every 
contract,  but  to  recover  damages  there  is  no  necessity  for 
mutuality  of  obligation.  Thus,  an  infant  can  recover  dam- 
ages against  a  person  sui  juris,  with  whom  he  has  con- 
tracted, although  he  might  himself  have  pleaded  infancy. 
But,  for  specific  performance,  mutuality  of  obligation  is  es- 
sential ;  2  and  in  such  a  case  one  party  to  a  contract  is  not 
bound  when  he  cannot  enforce  it  against  the  other.* 

It  has  been  said  that  the  doctrine  of  mutuality  "is  a  tech- 
nical doctrine;  but,  like  many  other  technical  doctrines,  it 
is  founded  on  common  sense.  It  comes  simply  to  this : 
That  one  party  to  a  bargain  shall  not  be  held  bound  to  that 
bargain  when  he  cannot  enforce  it  against  the  other.  If 
the  contract  is  not  mutually  enforceable,  it  is  a  voidable 
contract ;  that  is,  it  may  be  avoided  as  soon  as  the  person 
who  has  a  right  to  avoid  it  discovers  that  the  cause  or  oc- 
casion for  doing  so  occurs."  * 

Exceptions  exist  to  the  necessity  of  mutuality.  Certain 
unilateral  or  conditional  contracts  come  within  such  excep- 

§  265.  i  Fry,  Spec.  Perf.  §  460;  Rutland  Marble  Co.  v.  Rlpley,  10 
Wall.  339.  35i),  19  L.  Ed.  955. 

2  Flight  v.  Holland,  4  Russ.  301,  2  Keener,  Eq.  Gas.  800:  Rut- 
land Marble  Co.  v.  Ripley,  10  Wall.  339,  309,  19  L.  Ed.  955;  Iron 
Age  Pub.  Co.  v.  Telegraph  Co.,  83  Ala.  498,  3  South.  449,  2  Keener, 
Eq.  Cas.  834;  Bourget  v.  Monroe,  58  Mich.  563,  25  N.  W.  514;  Brown 
v.  Muuger.  42  Minn.  482,  44  N.  W.  519;  Glass  v.  Rowe,  103  Mo.  513, 
15  S.  W.  334;  Butman  v.  Porter,  100  Mass.  337. 

»  Wylson  v.  Dunn,  34  Ch.  Div.  569,  577;  Alworth  v.  Seymour,  42 
Minn.  520,  44  N.  W.  1030.  The  rule  Is  subject  to  the  modification 
that,  If  the  quality  originally  lacking  be  subsequently  supplied,  the 
enforcement  of  the  contract  may  be  made  possible.  Woodruff  v. 
Woodruff,  44  N.  J.  Eq.  349,  16  Atl.  4,  1  L.  R.  A.  380. 

*  Wylson  v.  Dunn,  34  Ch.  Div.  5G9,  577,  per  Kekewich,  J. 


§  266)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.         537 

tions, — as,  where  an  owner  of  land  gives  another,  for  a  valu- 
able consideration,  an  option  to  purchase  the  land  within  a 
specified  time,  the  contract  will  be  enforced  at  the  suit  of 
the  party  holding  the  option,  although  no  obligation  rested 
on  him  to  make  the  purchase ; B  and  also  a  contract  for 
the  purchase  of  land  at  the  option  to  sell  of  the  owner  can 
be  enforced  by  the  owner.8  And  a  memorandum  for  the 
sale  and  conveyance  of  land,  although  signed  only  by  the 
party  to  be  charged,  when  sufficiently  clear  and  certain  in 
its  terms,  affords  sufficient  basis  for  a  suit  for  specific  per- 
formance.7 

SAME— WANT  OF  FAIRNESS. 

266.  There  are  many  cases  -where  a  -want  of  equal- 
ity and  fairness  in  the  contract  will  pre- 
clude a  court  of  equity  from  exercising  its 
jurisdiction  to  decree  a  specific  performance, 
although  actual  fraud  is  not  involved. 

In  cases  of  fraud,  the  effect  of  which  is  to  be  hereafter 
considered,  a  court  of  equity  will  not  only  not  specifically  en- 
force a  contract,  but  will  rescind  it.  But  there  are  many  cases 
where  actual  fraud  is  not  involved,  in  which  the  court  will  re- 
fuse to  interpose  its  jurisdiction.1  The  unfairness  in  question 
may  be  either  in  the  terms  of  the  contract  itself,  or  it  may 
be  in  matters  extrinsic,  and  in  the  circumstances  under  which 
it  was  made.  With  regard  to  the  latter,  parol  evidence  is, 

»  Johnston  v.  Trippe  (C.  C.)  33  Fed.  530,  536;  Fruo  v.  Houghton,  0 
Colo.  318;  Boss  v.  Parks,  93  Ala.  153,  8  South.  368,  11  L.  R.  A:  148, 
30  Am.  St.  Rep.  47;  Johnston  v.  Wadsworth,  24  Or.  494,  34  Pac.  13; 
Watts  v.  Kellar,  5  C.  C.  A.  394,  56  Fed.  1;  Boston  &  M.  R.  Co.  v. 
Bartlett,  3  Cush.  (Mass.)  224;  Miller  v.  Cameron,  45  N.  J.  Eq.  95, 
15  Atl.  842,  1  L.  R.  A.  554.  But,  where  there  is  no  consideration  for 
the  option,  specific  performance  will  not  be  decreed.  Graybill  v. 
Brugh,  89  Va.  895,  17  S.  E.  558,  21  L.  R.  A.  133,  37  Am.  St.  Rep.  894. 

«  Miller  v.  Cameron,  45  N.  J.  Eq.  95,  15  Atl.  842,  1  L.  R.  A.  554. 

i  Mastin  v.  Grimes,  88  Mo.  478;  Dynan  v.  McCulloch,  46  N.  J.  Eq. 
11,  18  Atl.  822;  Clason  v.  Bailey,  14  Johns.  (N.  Y.)  489;  Ives  v.  Haz- 
ard, 4  R.  I.  14,  67  Am.  Dec.  500;  Rogers  v.  Saunders,  16  Me.  92,  33 
Am.  Dec.  635;  Docter  v.  Hellberg,  63  Wis.  415,  27  N.  W.  176. 

§  266.  i  Willan  v.  Willan,  16  Ves.  83:  Twining  v.  Mori-ice,  2 
Brown,  Ch.  326;  Savage  y.  Brocksopp,  18  Ves.  335. 


538  SPECIFIC   PERFORMANCE.  (Ch.   21 

of  course,  admissible.2  As  an  instance  of  the  application  of 
this  rule,  the  court  of  equity  refused  to  exercise  its  juris- 
diction to  enforce  a  contract  by  a  married  woman  to  pur- 
chase land,  by  the  terms  of  which  she  was  to  secure  pay- 
ment of  the  purchase  price  by  a  mortgage,  not  only  on  the 
land  purchased,  but  on  her  other  separate  real  estate,  be- 
cause such  a  contract  was  deemed  rash  and  improvident.3 
And  on  the  ground  of  want  of  fairness  the  court  will  not 
specifically  enforce  a  contract  against  a  party  thereto  who, 
at  the  time  of  entering  into  it,  was  in  a  state  of  intoxication : 
and  this  is  true  even  in  the  absence  of  any  unfair  advantage 
taken  of  his  situation  which  would  induce  the  court  to 
rescind  the  contract.4  The  fairness  of  the  contract,  like 
all  its  other  qualities,  must  be  judged  as  of  the  time  it  was 
entered  into,  or  at  least  when  the  contract  became  absolute, 
and  not  by  subsequent  events.5  The  fact  that  events  un- 
certain at  the  time  of  the  contract  may  afterwards  happen 
in  a  manner  contrary  to  the  expectation  of  one  or  both  of 
the  parties  is  no  reason  for  holding  the  contract  to  have 
been  unfair." 

The  court  will  not  exercise  its  extraordinary  power  in 
compelling  specific  performance,  where  to  do  so  would  ne- 
cessitate a  breach  of  trust7  or  of  a  prior  contract  with  a 
third  person ; 8  nor  will  equity  compel  a  person  to  do  any 
act  which  he  is  not  lawfully  competent  to  do,  even  though 
at  the  time  of  the  contract  the  act  might  have  been  law- 
ful,— partly  as  it  seems,  on  the  ground  of  the  unfairness 
and  illegal  taint  of  such  a  contract  in  itself,  and  partly  be- 
cause of  the  hardship  to  which  it  would  expose  the  person 
forced  to  execute  it ;  *  and,  if  the  contract  would  work  an 
injury  to  a  third  person,  or  to  the  public  interests,  equity 
will  not  decree  its  specific  performance.10 

»  Davis  v.  Symonds,  1  Cox,  Ch.  402;    Fry,  Spec.  Perf.  §  388. 

•  Friend  v.  Lamb,  152  Pa.  529,  25  Atl.  577.  34  Am.  St.  Rep.  072. 

«  Cooke  v.  Clayworth,  18  Ves.  12;  Nagle  v.  Baylor,  3  Dru.  &  War. 
60. 

0  Willard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed.  501;    Hale  v.  Wilkinson, 
21  Orat.  (Va.)  75. 

«  Fry,  Spec.  Perf.-§  389. 

1  Dunn  v.  Flood,  28  Oh.  DIv.  586;    Saltmarsh  v.  Beene,  4  Port. 
(Ala.)  283,  30  Am.  Dec.  525. 

•  Willmott  v.  Barber.  15  Ch.  Dlv.  90,  107. 

•  Fry.  Spec.  Perf.  §  407. 

»•  Thomas  v.  Dering,  1  Keen,  729;    Curran  v.  Power  Co..  116  Mass. 


§  268)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        639 
SAME— HARDSHIP  OF  THE  CONTRACT. 

267.  A  court  of  equity  will  not  decree  the    specific 

performance  of  a  contract,  the  result  of 
which  would  be  to  impose  great  hardship 
on  either  of  the  parties,  although  the  party 
seeking  specific  performance  may  be  free 
from  improper  conduct.1 

If  a  contract  is  unreasonably  oppressive  on  either  of  the 
contracting  parties,  a  court  of  equity  will  not  lend  its  aid 
by  decreeing  a  specific  performance  thereof.2  Thus,  spe- 
cific performance  will  not  be  decreed  in  favor  of  a  vendor 
where,  after  the  execution  of  the  contract,  a  portion  of  the 
premises  has  been  washed  away  by  the  sea,3  or  where  im- 
provements on  the  land  were  destroyed  by  fire  before  he 
was  ready  to  convey.* 

SAME— INADEQUACY  OF  CONSIDERATION. 

268.  Unless   the    inadequacy    of    consideration    is 

such  as  shocks  the  conscience,  and  amounts 
in  itself  to  conclusive  and  decisive  evidence 
of  fraud  in  the  transaction,  it  is  not  it- 
self a  sufficient  ground  for  refusing  a  spe- 
cific performance.1 

The  doctrine  of  the  older  English  cases  was  that  in- 
adequacy of  consideration  was  a  sufficient  ground  of  defense 

90:  Chicago,  B.  &  Q.  R.  Co.  v.  Reno,  113  111.  30;  Conger  v.  Rail- 
road Co.,  120  N.  Y.  29,  23  N.  E.  983;  Kelly  v.  Railroad  Co.,  74  Cal. 
557,  16  Pac.  386,  5  Am.  St.  Rep.  470. 

§  267.  i  Gould  v.  Kemp,  2  Mylne  &  K.  308;  Falcke  v.  Gray,  4 
Drew.  660. 

2  Wedgwood  v.  Adams.  6  Beav.  600;  Id.,  8  Beav.  103;  Watson  v. 
Marston,  4  De  Gex,  M.  &  G.  230;  Ramsay  v.  Gheen,  99  N.  C.  215, 
6  S.  E.  75;  Miles  v.  Iron  Co.,  125  N.  Y.  294,  26  N.  E.  261.  But  see, 
however,  Franklin  Tel.  Co.  v.  Harrison,  145  U.  S.  459,  12  Sup.  Ct. 
»00,  36  L.  Ed.  776. 

»  Huguenin  v.  Courtenay,  21  S.  C.  403,  53  Am.  Rep.  688. 

«  Smith  v.  Cansler,  83  Ky.  367. 

I  268.     i  Per  Lord  Eldon  in  Stillwell  v.  Wilkins,  Jac.  282. 


540  SPECIFIC    PERFORMANCE.  (Ch.   21 

to  a  specific  performance,  it  being  regarded,  even  where 
not  amounting  to  evidence  of  fraud,  as  a  circumstance  of 
hardship  which  should  prevent  equitable  interference.  But 
the  later  cases  have  refused  to  regard  inadequacy  of  con- 
sideration in  itself  as  a  defense  of  specific  performance,  un- 
less it  amounts  to  an  evidence  of  fraud,  and  would,  there- 
fore, constitute  a  sufficient  ground  for  the  cancellation  of 
the  contract.2  There  is  no  doubt,  however,  that  inadequacy 
of  consideration,  when  combined  with  fraud,  misrepresen- 
tation, studied  suppression  of  the  true  value  of  the  prop- 
erty, or  with  other  circumstances  of  oppression  or  even 
of  ignorance,  is  a  most  material  ingredient  in  the  case  as 
affecting  the  discretion  of  the  court  in  granting  specific  per- 
formance.8 

The  question  as  to  whether  inadequacy  of  consideration  is 
a  good  defense  in  a  suit  for  specific  performance  has  been 
a  somewhat  troublesome  one  for  the  courts  in  this  country. 
Chief  Justice  Savage,  in  the  case  of  Seymour  v.  De  Lancy,4 
in  the  old  court  of  errors  of  New  York,  said:  "Upon  au- 
thority, therefore,  as  well  as  upon  principle,  I  am  clearly 
of  the  opinion  that  a  court  of  equity  ought  not  to  lend  its 
aid  in  enforcing  an  executory  contract,  unless  it  is  fair, 
just,  reasonable,  and  equal  in  all  its  particulars,  and  founded 
upon  adequate  consideration."  Chief  Justice  Savage  goes 
on  to  say  in  this  case:  "If  the  contract  be  free  from  ob- 
jection, it  is  the  duty  of  the  court  to  decree  performance, 
but,  if  there  are  circumstances  of  unfairness,  though  not 
amounting  to  fraud  or  oppression,  or  if  the  inadequacy  of 
consideration  be  so  great  as  to  render  the  bargain  hard 
and  unconscionable,  on  either  ground  the  court  may  refuse 
its  aid  to  enforce  the  contract,  and  leave  the  parties  to  con- 
test their  rights  in  a  court  of  law.  If  it  is  asked,  what  de- 
gree of  inadequacy  is  necessary  to  constitute  the  bargain  a 
hard  one?  it  might  be  asked  in  answer,  what  degree  of  in- 
adequacy is  necessary  to  constitute  fraud, — to  shock  the 
conscience  and  produce  an  exclamation?"  It  would  seem, 

*  Watson  v.  Doyle,  130  111.  415,  22  N.  E.  613;  Lee  Y.  Klrby,  104 
Mass.  420;  Randolph's  Ex'r  v.  Quidnlck  Co.,  135  U.  S.  457,  10  Sup. 
Ot  655,  34  L.  Ed.  200. 

«  Fry,  Spec.  Perf.  §  440;  Conaway  v.  Sweeney,  24  W.  Va.  643, 
€61. 

«  3  Cow.  445,  15  Am.  Dec.  270,  2  Keener,  Eq.  Cos.  772.  784, 


§  269)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        541 

as  Prof.  Pomeroy  suggests,5  since  fraud  is  now  regarded  as  a 
fact,  and  its  existence  is  ascertained,  like  that  of  any  other 
fact,  by  comparing  and  weighing  the  evidence,  that  the 
phrase  "conclusive  evidence  of  fraud,"  as  used  in  the  black- 
letter  text,  is,  from  the  very  nature  of  the  case,  an  absurd- 
ity, and  that  the  difficulties  in  the  question  have  not  been 
removed  by  treating  the  inadequacy  as  an  evidence  of  fraud, 
rather  than  as  a  hardship.  Notwithstanding  the  many  learn- 
ed judges  and  writers  who  have  seemed  to  disagree  with 
the  rule  as  stated  above,  it  seems  to  be  settled  in  this  coun- 
try by  the  weight  of  authority. 

SAME— LAPSE  OF  TIME. 

269.  The  lapse  of  time  before  application  to  tlie 
court  for  a  decree  to  enforce  the  specific 
performance  of  a  contract  may  furnish 
grounds  of  defense  in  an  action  therefor. 

Equity  aids  the  vigilant,  not  those  who  slumber  on  their 
rights.  Independent  of  the  statutes  of  limitation,  the  rules 
of  equity  require  the  plaintiff  to  exert  himself  energetically. 
He  must  come  into  court  within  a  reasonable  time  with 
his  demand.  Laches  will  destroy  his  right  to  equitable  aid.1 
Especially  is  this  the  case  when  the  subject-matter  of  the 
contract  is  an  article  of  fluctuating  value,  so  that  the  delay 
may  greatly  change  the  aspect  of  the  bargain.2  This  doc- 
trine rests  upon  the  principle  that  for  the  peace  of  society 
the  court  will  discourage  demands  by  refusing  to  interfere 
where  there  has  been  gross  laches  in  prosecuting  rights,  or 

»  Pom.  Spec.  Perf.  27. 

§  269.  i  Moore  v.  Blake,  1  Ball  &  B.  62;  Smith  v.  Clay,  8  Brown, 
Ch.  640,  note;  Eads  v.  Williams,  4  De  Gex,  M.  &  G.  674,  691;  Coca- 
nougher  v.  Green,  98  Ky.  519,  20  S.  W.  542;  Young  v.  Young,  45 
N.  J.  Eq.  27,  39,  16  Atl.  921;  McCabe  v.  Mathews  (C.  C.)  40  Fed.  338; 
Alexander  v.  Wunderltch,  118  Pa.  610,  12  Atl.  580;  Blackwell  v. 
Ryan,  21  S.  C.  112;  Ridgway  v.  Ridgway,  69  Md.  242,  14  Atl.  659; 
Boston  &  M.  R.  Co.  v.  Bartlett,  10  Gray  (Mass.)  384. 

2  Pollard  v.  Clayton,  1  Kay  &  J.  462;  Been  v.  Milne,  113  N.  Y. 
803,  309,  20  N.  E.  861;  Combs  v.  Scott,  76  Wis.  662,  45  N.  W.  532; 
Penrose  v.  Leeds,  46  N.  J.  Eq.  294,  296,  19  Atl.  134;  Ruff's  Appeal. 
117  Pa,  319,  11  Atl.  553;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Stewart 
(C.  C.)  19  Fed.  5. 


542  SPECIFIC    PERFORMANCE.  (Ch.    21 

long  and  unreasonable  acquiescence  in  the  assertion  of  ad- 
verse rights.8 

SAME— FRAUD  AND  MISTAKE. 

270.  If  a  contract  is  such  that  equity  would  rescind 
it  for  fraud  or  mistake,  a  fortiori  it  •will 
refuse  specific  performance  thereof. 

In  former  chapters  we  have  already  considered  what  will 
vitiate  contracts  because  of  fraud  and  mistake.1  A  court 
of  equity  will  not  specifically  enforce  a  contract  which  has 
been  procured  by  false  misrepresentations,  or  the  practice 
of  deceit.2  Statements  contrary  to  fact,  made  by  a  party 
with  a  view  to  the  contract,  are  means  of  resisting  perform- 
ance, though  the  party  making  them  believe  them  to  be 
true.8  A  silence  as  to  material  facts  by  one  party  is  a  de- 
fense to  the  other  in  an  action  for  specific  performance.* 
As  was  said  by  Lord  Romilly:  "It  is  of  the  greatest  im- 
portance that  it  should  be  understood  that  the  most  perfect 
truth  and  the  fullest  disclosure  should  take  place  in  all 
cases  where  the  specific  performance  of  a  contract  is  re- 
quired, and  that,  if  this  fails,  even  without  any  intentional 
suppression,  the  court  will  grant  relief  to  the  man  who  has 
been  thereby  deceived,  provided  he  has  acted  reasonably  and 
openly."  °  Where  the  aid  of  a  court  of  equity  is  sought  by 
way  of  specific  performance  of  a  contract,  the  principles  of 
ethics  have  a  more  extensive  sway  than  where  a  contract- 
is  sought  to  be  rescinded.  Where  a  party  calls  for  specific 
performance,  he  must,  at  every  stage  of  the  transaction,  be 
free  from  imputation  of  fraud  or  deceit,  and  show  that  his 
conduct  has  been  clear,  honorable,  and  fair.* 

•  Young  v.  Young,  45  N.  J.  Eq.  27,  16  Atl.  921. 
§  270.     i  Ante,  pp.  255-345. 

»  Kelly  v.  Kendall,  118  111.  650,  9  N.  E.  261;  Orne  v.  Coal  Co.,  114 
Pa.  172.  6  Atl.  358;  Sheets  v.  Bray,  125  Ind.  33,  24  N.  E.  357. 

»  In  re  Banister,  12  Ch.  Dlv.  131,  142;  Holmes'  Appeal,  77  Pa.  50; 
Isaacs  v.  Strainka,  95  Mo.  517,  8  S.  W.  427;  Kelly  v.  Railroad  Co., 
74  Cal.  557,  16  Pac.  386,  5  Am.  St.  Rep.  470. 

«  Byars  v.  Stubbs,  85  Ala.  256,  4  South.  755;  Margraf  v.  Mulr,  57 
N.  Y.  155;  Baskcomb  v.  Beckwith,  L.  R.  8  Eq.  100,  2  Keener,  Eq. 
Cas.  9G3. 

»  Baskcomb  v.  Beckwith,  L.  R.  8  Eq.  100,  2  Keener,  Eq.  Caa.  963. 

•  Kerr,  Fraud  &  M.  357,  35S. 


§  271)       DEFEJS7SES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        543 

An  intentional  or  unintentional  mistake  of  one  party,  con- 
tributed to  by  the  other,  is  a  ground  for  refusing  specific 
performance.7  The  principle  goes  even  further,  and  a  mis- 
take of  one  of  the  parties,  not  contributed  to  by  the  other, 
has  been  held  a  valid  defense ; 8  but  generally  the  cases 
where  a  defendant  has  escaped  on  the  ground  of  a  mistake 
not  contributed  to  by  the  plaintiff  have  been  cases  where 
it  would  have  amounted  to  an  injustice  to  hold  him  to  his 
bargain.  It  would  be  impracticable  as  well  as  unsafe,  to 
attempt  to  enumerate  the  circumstances  under  which  mis- 
takes would  operate  as  a  defense  in  an  action  of  specific  per- 
formance ;  but  one  principle  would  seem  to  run  through 
all  the  cases, — that,  to  constitute  a  defense,  the  mistake  must 
not  be  due  solely  to  the  negligence  and  want  of  reasonable 
care  on  the  part  of  him  who  seeks  to  set  it  up.  Where 
there  has  been  no  fraud  or  misrepresentation,  and  the  terms 
of  the  contract  are  unambiguous,  so  that  there  is  no  rea- 
sonable ground  or  excuse  for  the  mistake,  it  is  not  suffi- 
cient, in  order  to  resist  specific  performance,  for  the  party 
to  say  that  he  did  not  understand  its  meaning.' 

SAME— UNCERTAINTY  OP  CONTRACT. 

871.  A  contract  •will  not  be  specifically  enforced, 
unless  it  is  certain  in  its  terms,  or  can  be 
made  certain  by  reference  to  such  extrinsic 
facts  as  may,  within  the  rules  of  law,  be 
referred  to  for  the  purpose  of  ascertaining 
its  meaning.1 

A  greater  amount  of  certainty  is  required  in  an  action 
for  the  specific  performance  of  a  contract  than  in  an  action 
for  damages.  To  sustain  an  action  at  law,  the  plaintiff  need 
prove  only  the  negative  proposition  that  the  defendant  has 

i  Denny  v.  Hancock,  6  Ch.  App.  1;  Campbell  v.  Durham,  86  Ala. 
299,  5  South.  507. 

a  Webster  v.  Cecil,  30  Beav.  62;  Malins  v.  Freeman,  2  Keen,  25; 
Buckley  v.  Patterson,  39  Minn.  250,  39  N.  W.  490;  Burkhalter  v. 
Jones,  32  Kan.  5,  3  Pac.  559. 

»  Caldwell  v.  Depew,  40  Minn.  528,  42  N.  W.  479,  2  Keener,  Eq. 
Cas.  1000. 

§  271.     »  Shakespeare  v.  Markham,  72  N.  Y.  400,  406. 


544  SPECIFIC    PERFORMANCE.  (Ch.  21 

not  performed  the  contract, — a  conclusion  which  may  be 
often  arrived  at  without  any  exact  consideration  of  the  terms 
of  the  contract;  but  in  proceedings  for  specific  perform- 
ance it  must  appear  not  only  that  the  contract  has  not  been 
performed,  but  what  the  contract  is  which  is  to  be  per- 
formed.8 It  is  perhaps  impossible  to  lay  down  any  general 
rule  as  to  .what  is  sufficient  certainty  in  a  contract ;  but  it 
may  be  safely  stated  that  the  certainty  required  must  be  a 
reasonable  one,  having  regard  to  the  subject-matter  of  the 
contract,  and  the  circumstances  under  which,  and  with  re- 
gard to  which,  it  was  entered  into.3  The  reason  for  this 
rule  has  been  stated  thus:  "Unless  the  court  be  fully  ad- 
vised as  to  what  particular  obligations  the  parties  have  un- 
dertaken to  assume,  and  what  specific  rights  they  have 
mutually  stipulated  to  confer,  it  would  be  impossible  to  ad- 
judge whether  the  contract  is  sufficiently  fair,  just,  and 
equitable  in  its  parts  to  justify  its  enforcement  by  the  strong 
arm  of  the  court,  or  to  render  a  decree  intelligibly  settling 
the  rights  and  duties  of  the  parties  which  the  court  is  asked 
to  enforce."  * 

Where  the  terms  of  the  contract  are  originally  uncertain, 
but  it  has  been  acted  upon  and  the  subsequent  dealings  of  the 
parties  have  given  certainty  to  what  was  originally  uncer- 
tain, the  court  has  in  some  cases  regarded  such  facts  as  re- 
moving the  original  difficulty.*  When  a  contract  is  reduced 

«  Fry,  Spec.  Perf .  §  380. 

»  Ross  v.  Purse,  17  Colo.  24,  28  Pac.  473;  Iron  Age  Pub.  Co.  v. 
Telegraph  Co.,  83  Ala.  408,  3  South.  449,  3  Am.  St  Rep.  758,  2 
Keener,  Eq.  Cas.  834;  Woods  v.  Evans,  113  111.  186;  Ham  v. 
Johnson  (Minn.)  56  N.  W.  584;  Walcott  v.  Watson  (C.  C.)  53 
Fed.  429;  Hennessey  v.  Woolworth,  128  U.  S.  440,  9  Sup.  Ct 
109,  32  L.  Ed.  500;  Crouse  v.  Frothingham,  97  N.  Y.  105;  Anderson 
v.  Brinser,  129  Pa.  376,  11  Atl.  809,  18  Atl.  520.  Indeflniteness  as  to 
consideration,  Weaver  v.  Shenk,  154  Pa.  206,  26  Atl.  811;  Fogg  v. 
Price,  145  Mass.  513,  14  N.  E.  741;  Huff  v.  Shepard.  58  Mo.  242;  Pray 
v.  Clark,  113  Mass.  283;  Maud  v.  Maud,  33  Ohio  St.  147.  Indefinite 
description  of  subject-matter,  Preston  v.  Preston,  95  U.  S.  200,  24 
L.  Ed.  494;  Eggleston  v.  Wagner,  46  Mich.  610,  10  N.  W.  37;  Min- 
neapolis &  St.  L.  Ry.  Co.  v.  Cox,  76  Iowa,  306,  41  N.  W.  24;  Combs 
v.  Scott,  76  Wls.  662,  45  N.  W.  532;  Mann  v.  Hlggins,  83  Cal.  66,  23 
Pac.  206;  Olmstead  v.  Abbott,  61  Vt  281,  18  Atl.  315. 

*  Iron  Age  Pub.  Co.  v.  Telegraph  Co..  83  Ala.  498,  503,  3  South. 
449,  3  Am.  St  Rep.  758,  2  Keener,  Eq.  Cas.  834. 

»  Oxford  v.  Provaud,  5  Moore,  P.  C.  (N.  S.)  150;  Hart  v.  Hart,  18 
Ch.  Div.  U70,  GS5. 


§  272)      DEFENSES  IN  ACTION  FOR  SPECIFIC  PERB'ORMANCE.        545 

to  writing,  the  description  contained  therein  may  be  identi- 
fied by  extrinsic  evidence  under  an  application  of  the  max- 
im, "That  is  certain  which  may  be  made  certain."  •  When 
the  contract  specifies  a  mode  of  ascertaining  the  price,  which 
is  essential,  specific  performance  will  not  be  decreed,  unless 
that  mode  has  been  followed.1 


SAME— WANT  OP  TITLE. 

272.  A  vendor  is  not  entitled  to  a  specific  perform- 
ance against  a  vendee,  unless  he  can 
tender  -what  is  called  a  marketable  title; 
that  is,  a  title  which  can  again  be  sold  to 
a  reasonable  purchaser  or  mortgaged  to  a 
person  of  reasonable  prudence  as  a  security 
for  the  loan  of  money.1 

This  rule,  of  course,  is  most  frequently  applied  in  cases 
of  executory  contracts  for  the  sale  of  land.  Unless  a  per- 
son has  expressly  stipulated  in  his  contract  to  take  a  title, 
notwithstanding  its  defects,  it  is  implied  that  the  title  sold 
is  clear  of  defects  and  incumbrances.  The  right  of  the 
vendee  to  an  indisputable  title  does  not  depend  upon  the 
agreement  of  the  party,  but  is  given  by  law.3  It  has  often 
been  held  that  a  title  is  not  marketable  when  it  exposes  the 
party  holding  it  to  litigation.8  But  a  title  will  not  be  con- 
sidered doubtful  merely  because  there  is  a  slight  risk  of 
some  future  litigation  against  the  purchaser,4  nor  where  it 
would  be  the  duty  of  the  'judge  to  give  a  clear  direction  to 

«  Shardlow  v.  Cotterell,  20  Ch.  Dir.  90;  Ragsdale  v.  Mays,  65 
Tex.  255f  Doctor  v.  Hellberg,  65  Wis.  415,  27  N.  W.  176. 

1  Firth  v.  Midland  Ry.  Co.,  L.  R.  20  Eq.  100;   Woodruff  v.  Wood- 
ruff, 44  N.  J.  Eq.  349,  16  Atl.  4;    Hopkins  v.  Gilman,  22  Wis.  476; 
Graham  v.  Call,  5  Munf.  (Va.)  396. 

§  272.  i  Moore  v.  Williams,  115  N.  Y.  586,  592,  22  N.  E.  233,  5  L. 
R.  A.  654. 

2  Sugd.  Vend.  14;  Burwell  r.  Jackson,  9  N.  Y.  535. 
*  Dobbs  v.  Norcross,  24  N.  J.  Eq.  327. 

«  First  African  M.  E.  Soc.  v.  Brown,  147  Mass.  296,  298,  17  N.  E. 
549;  Hellreigel  v.  Manning,  97  N.  Y.  56;  Cambrelleng  v.  Purton, 
125  N.  Y.  610,  26  N.  E.  907;  Stevenson  v.  Polk,  71  Iowa,  278,  32  N. 
,W.  340;  Hedderly  v.  Johnson,  42  Minn.  443,  44  N.  W.  527. 

EATON.EQ.— 36 


546  SPECIFIC   PERFORMANCE.  (Ch.  2l 

the  jury  in  favor  of  the  title,  and  not  leave  the  evidence 
generally  to  its  consideration.' 

It  is  by  no  means  easy  to  express  what  amount  of  doubt 
upon  a  title  there  must  be  to  induce  a  court  of  equity  to 
refuse  specific  performance.  In  many  cases  the  question 
rests  in  the  sound  discretion  of  the  court.8  Lord  Eldon 
once  said :  "The  court  has  almost  gone  the  length  of  say- 
ing that,  unless  it  is  so  confident  that,  if  it  had  £5,000  to  lay 
out  on  such  an  occasion,  it  would  not  hesitate  to  trust  its 
own  money  on  the  title,  it  would  not  compel  a  purchaser 
to  take  it."  T 

The  doubt  which  may  prevent  the  court  from  compelling 
the  purchaser  to  accept  a  title  may  be  either  of  law  or  of 
fact.8  If  the  doubt  rests  upon  record  evidence,  and  the 
muniments  of  title  are  preserved  and  accessible,  it  will  be 
a  question  for  the  court  to  determine  upon  their  inspec- 
tion,— a  question  of  legal  construction.  If  it  is  to  be  es- 
tablished by  proof  of  matters  of  fact  not  of  record,  the  case 
must  be  made  very  clear  by  the  vendor  to  warrant  the  court 
in  decreeing  a  specific  performance.9  Thus  a  title  depend- 
ing upon  the  bar  of  the  statute  of  limitations  may  be  a 
marketable  title,  if  it  clearly  appears  that  the  entry  of  the 
real  owner  is  barred.10  But,  where  the  title  depends  upon 
matter  of  fact,  such  as  is  not  capable  of  satisfactory  proof, 
or  where  the  fact  is  capable  of  such  proof,  yet  is  not  so 


•  Chesman  v.  Cumraings,  142  Mass.  C5,  67,  7  N.  E.  130.    The  par- 
ties interested  should,  however,  all  be  before  the  court.     Fleming  v. 
Burn  bam,  100  N.  Y.  1,  9,  2  N.  E.  905. 

«  Shriver  v.  Shriver,  86  N.  Y.  575,  584;  White  v.  Damon,  7  Ves.  35. 

T  Jervoise  v.  Duke  of  Northumberland,  1  Jac.  &  W.  569;  Pyrke 
v.  TVaddingham,  10  Hare,  9,  where  Turner,  V.  C.,  says:  "A  doubt- 
ful title,  which  a  purchaser  will  not  be  compelled  to  accept,  is  not 
only  a  title  upon  which  the  court  entertains  doubt,  but  includes  also 
a  title  which,  although  the  court  has  a  favorable  opinion  of  It,  yet 
may  reasonably  and  fairly  be  questioned  in  the  opinion  of  other 
competent  persons;  for  the  court  has  no  means  of  binding  the  ques- 
tion as  against  adverse  claimants,  or  of  indemnifying  the  purchaser. 
If  its  own  opinion  In  favor  of  the  title  should  turn  out  not  to  be  well 
founded." 

•  Sloper  v.  Fish,  2  Ves.  &  B.  145;  In  re  Thackwray  and  Young's 
Contract,  40  Oh.  Div.  34. 

•  Townshond  v.  Goodfellow,  40  Minn.  312,  316,  41  N.  W.  1056,  3  L. 
R.  A.  739,  12  Am.  St.  Kep.  T.'iG. 

i«  i'rutt  v.  Eby,  G7  1'u.  3 


§  272)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        547 

proved,  the  purchaser  cannot  be  compelled  to  take  it.11 
Mr.  Fry  states  grounds  for  the  existence  of  a  doubt  as  to 
a  title  which  may  be  summarized  as:  (i)  Where  there  is 
probability  of  litigation  ensuing  against  the  purchaser;  (2) 
where  there  has  been  a  decision  of  a  court  of  co-ordinate 
jurisdiction  adverse  to  the  title;  (3)  where  there  has  been 
a  decision  favorable  to  the  title  which  the  court  thinks  is 
wrong;  (4)  where  the  title  depends  upon  the  construction  of 
some  ill-expressed  and  inartificial  instrument ;  (5)  where  the 
title  rests  on  a  presumption  of  fact  of  such  a  kind  that,  if 
the  question  of  fact  were  before  a  jury,  it  would  be  the 
duty  of  the  court,  not  to  give  a  clear  direction  in  favor  of 
the  fact,  but  to  leave  the  jury  to  draw  their  own  conclu- 
sion from  the  evidence ;  (6)  where  the  circumstances  amount 
to  presumptive  (though  not  necessarily  conclusive)  evidence 
of  a  fact  fatal  to  the  title.12 

It  is  not  sufficient,  to  render  a  title  doubtful,  that  there 
be  a  mere  possibility  of  an  adverse  claim.  If  the  exist- 
ence of  the  alleged  fact  creating  the  doubt  is  a  possibility 
merely,  or  the  alleged  outstanding  right  a  very  improbable 
and  remote  contingency,  the  court  may,  in  its  discretion, 
compel  the  purchaser  to  complete  his  purchase.13  And  a 
court  of  equity  will  compel  a  purchaser  to  complete  his 
contract  for  the  purchase  of  lands  if  the  vendor  is  able  to 
make  good  the  title  at  any  time  before  the  final  decree  of 
the  court  is  pronounced ; 14  and  the  vendor  will  be  per- 
mitted to  remedy  the  defects  in  his  title  if  he  can  do  so 

11  Shriver  v.  Shriver,  86  N.  Y.  575,  585. 

12  Fry,  Spec.  Perf.  §  890. 

is  Ferry  v.  Sampson,  112  N.  Y.  415,  20  N.  B.  387;  Vreeland  r. 
Blawvelt,  23  N.  J.  Eq.  483;  Lyman  v.  Gedney,  114  111.  388,  29  N.  E. 
282;  HeddeYly  v.  Johnson,  42  Minn.  443,  44  N.  W.  527,  18  Am.  St 
Rep.  521;  Webb  v.  Chlsolm,  24  S.  C.  487,  491.  In  the  case  of 
Schermerhorn  v.  Niblo,  2  Bosw.  (N.  Y.)  161  (approved  and  followed 
In  Moses  v.  Cochrane,  107  N.  Y.  35,  41,  13  N.  B.  442),  It  was  said: 
"As  the  law  does  not  regard  trifles,  a  bare  possibility  that  the  title 
may  be  affected  by  the  existing  causes  which  may  subsequently  be 
developed,  when  the  highest  evidence  which  the  nature  of  the  case 
admits,  amounting  to  a  moral  certainty,  is  given,  that  no  such  cause 
exists,  will  not  be  regarded  as  a  sufficient  ground  for  declining  to 
compel  a  purchaser  to  perform  his  contract." 

i*  Hepburn  v.  Dunlop,  1  Wheat.  179,  4  L.  Ed.  65;  Moss  v.  Hanson, 
17  Pa.  379;  Richmond  v.  Gray,  3  Allen  (Mass.)  25;  Linn  v.  McLean, 
SO  Ala.  300;  Fraker  v.  Brazelton,  12  Lea  (Teiin.)  278. 


548  SPECIFIC    PERFORMANCE.  (Ch.    21 

within  a  reasonable  time.15  But,  if  the  vendor  had  no  title 
at  the  time  the  contract  was  executed,  equity  will  not  in- 
terfere to  compel  specific  performance  of  the  contract,  even 
if  the  vendor  subsequently  acquires  a  title.  Such  a  trans- 
action is  speculative,  and  the  vendor  is  not  a  bona  fide 
contractor.1* 


SAME— DEFAULT  OF  PLAINTIFF. 

273.  It  is  incumbent  upon  a  party  who  seeks 
the  specific  performance  of  a  contract  to 
show  that  he  has  substantially  performed, 
or  has  been  ready  and  willing  to  perform, 
all  that  the  contract  has  required  on  his 
part ;  and  also  that  he  is  ready  and  willing 
to  perform,  according  to  the  terms  of  the 
contract,  all  the  things  that  are  thereafter 
to  be  done  by  him.1 

The  plaintiff  must  show  the  performance  of  all  conditions 
precedent,  and  not  only  must  it  appear  that  the  plaintiff 
has  performed  all  the  express  terms  of  the  contract,  but  also 
such  of  the  implied  terms  as  are  essential.8  A  court  of 
equity  has  no  power  to  relieve  against  the  consequences  of 
the  nonperformance  of  conditions  precedent  unless  under 
special  and  extraordinary  circumstances.8  But  there  is  a 
distinction  to  be  made  between  a  nonperformance  of  the 
essential  and  nonessential  terms  of  a  contract.  The  de- 
fendant cannot  defend  a  suit  for  specific  performance  where 
the  default  of  the  plaintiff  is  in  an  unimportant  matter.4 
As  an  illustration  of  the  principle  of  nonperformance  as  a 
defense,  a  contract  for  the  sale  of  land  by  which  the  vendee, 
before  conveyance,  is  to  erect  a  building,  and  complete  eer- 
ie Lojran  v.  Bull,  78  Ky.  607. 

»•  Wylson  v.  Dunn,  34  Ch.  DIv.  569;  Forrer  T.  Nash,  35  Beav.  171; 
Tlernan  v.  Roland,  15  Pa.  420. 

§  273.     i  Haggerty  v.  Lund  Co.,  89  Ala.  428,  7  South.  651. 

«  Tildesley  v.  Clarkson,  30  Beav.  419.  But  see  Chappell  v.  Greg- 
ory, 34  Beav.  250. 

«  Haggerty  v.  Land  Co.,  89  Ala.  428,  7  South.  651. 

*  Fry,  Spec.  Perf .  g  IW5. 


§  274)      DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        549 

tain  improvements  on  the  land,  will  not  be  enforced  in  his 
favor  until  such  building  has  been  erected  and  improve- 
ments made.5  If  the  nonperformance  has  been  waived  by 
the  defendant,"  or  was  caused  by  his  neglect  or  default,7 
it  will  not  constitute  a  valid  defense  to  specific  performance. 


SAME— FAILURE  TO  PERFORM  WITHIN   THE  TIME. 

274.  Time  is  originally  of  the  essence  of  the  con- 
tract -whenever  the  justice  of  the  case  re- 
quires it,  or  when  it  appears  to  have  been 
a  part  of  the  real  intention  of  the  parties 
that  it  should  be  so,  and  not  to  have  been 
inserted  as  a  merely  formal  part  of  the 
contract.1 

In  a  comparatively  recent  case  in  the  supreme  court  of 
the  United  States  it  was  said :  "Time  may  be  made  of  the 
essence  of  the  contract  by  the  express  stipulation  of  the 
parties,  or  it  may  arise  by  implication  from  the  very  nature 
of  the  property,  or  from  the  surrounding  circumstances."  a 
At  law,  failure  of  the  plaintiff  to  perform  all  the  conditions 
of  his  contract  within  the  time  specified  therein  was  al- 
ways a  bar  to  an  action.3  But  the  court  of  chancery  seems 
at  one  time  to  have  gone  so  far  in  its  disregard  of  time  as 
to  consider  that  it  was  of  no  consequence  in  equity ;  *  and 
Lord  Thurlow,  in  the  case  of  Gregson  v.  Riddle,5  main- 
tained that  the  parties  to  a  contract  could  use  no  expression 
which  would  make  time  one  of  its  essentials.  This  doc- 
s' Haggerty  v.  Land  Co.,  supra.  And  see  Eastman  v.  Plumer,  46 
N.  H.  464;  Chicago  Municipal  Gaslight  &  Fuel  Co.  v.  Town  of  Lake, 
130  111.  42,  22  N.  B.  616;  Alexander  v.  Wunderlich,  118  Pa,  610,  12 
Atl.  580. 

«  Lamare  v.  Dixon,  L.  R.  6  H.  L.  414. 

1  Murrell  v.  Goodyear,  1  De  Gex,  F.  &  J.  432. 
§  274.     i  Fry,  Spec.  Perf.  §  1075. 

2  Cheney  v.  Libby,  134  U.  S.  68,  77,  10  Sup.  Ct.  498,  33  L.  Ed.  818. 
And  see  Brown  v.  Deposit  Co.,  128  U.  S.  403,  414,  9  Sup.  Ct.  127,  32 
L.  Ed.  468;   Mayor,  etc.,  of  City  of  Griffin  v.  City  Bank,  58  Ga.  584. 

3  Stowell  v.  Robinson,  3  Bing.  N.  C.  928. 

4  Gibson  v.  Patterson,  1  Atk.  12. 

e  Cited  by  Sir  Samuel  Romilly  in  Seton  v.  Slade,  7  Ves.  265. 


650  SPECIFIC    PERFORM ANCE.  (Ch.   21 

trine  was  based  upon  the  principles  that  in  a  contract  of 
sale  the  principal  object  of  the  parties  was  the  sale  of  an 
estate  for  a  specified  sum,  and  that  the  particular  time 
named  therein  for  its  completion  was  nonessential.6  Where 
the  element  of  time  is  of  no  consequence,  and  no  express 
stipulations  in  regard  to  a  default  have  been  made,  the 
present  rule  in  equity  is  to  decree  a  specific  performance, 
notwithstanding  the  plaintiff's  failure  to  keep  the  dates  as- 
signed by  the  contract.7 

An  express  stipulation  that  time  is  of  the  essence  of  the 
contract,  or  that  the  agreement  shall  be  void  if  it  is  not 
completed  on  a  specified  day,  will  be  respected  in  equity.8 
In  order  to  render  time  thus  essential,  it  must  be  clearly 
and  expressly  stipulated,  and  must  also  have  been  actually 
contemplated  and  intended  by  the  parties  that  it  shall  be  so. 
It  is  not  enough  that  a  time  is  merely  mentioned  during 
which  or  before  which  something  shall  be  done.9  But,  when 
such  a  stipulation  is  clearly  made,  the  court  cannot  refuse 
to  give  it  effect,  however  harsh  and  exacting  the  terms  of 
the  contract  may  be,  unless  in  contravention  of  public  pol- 
icy; otherwise,  it  would  be  to  make  a  contract  for  the 
parties  which  they  have  not  made  for  themselves.10  And, 
although  time  may  not  be  originally  of  the  essence  of  the 
contract,  yet,  where  there  has  been  great  and  unreasonable 
delay  by  one  of  the  parties,  the  other  party  may  fix  a  rea- 
sonable time  within  which  the  contract  is  to  be  completed, 
and  the  time  so  fixed  will  be  regarded  and  insisted  upon  in 

«  Lord  Eldon,  In  Seton  v.  Slade,  7  Ves.  273. 

T  Sylvester  v.  Born,  132  Pa.  4G7,  19  Atl.  337;  Dynan  v.  McCulloch, 
46  N.  J.  Eq.  11,  14,  18  Atl.  822;  Day  v.  Hunt,  112  N.  Y.  191,  If)"),  19 
N.  K.  414;  Maltby  v.  Austin,  65  Wis.  527,  27  N.  W.  162;  Dresel  v. 
Jordan,  104  Mass.  407;  Vaught  v.  Cain,  31  W.  Va.  424,  427,  7  S.  E. 
9;  Hunkins  v.  Hunkins,  65  N.  H.  95,  18  Atl.  655;  Tilley  v.  Thomas, 
8  Ch.  App.  67.  Delay  on  plaintiff's  part  must  not,  however,  be  so 
long  as  to  amount  to  laches. 

•  Hudson  v.  Bartram,  3  Mndd.  440;  Cheney  v.  Libby,  134  U.  S.  68, 
10  Sup.  Ct.  498,  33  L.  Ed.  818;   Woodruff  v.  Water  Co.,  87  Cal.  275, 
25  Pac.  354;    Sowles  v.  Hall,  62  Vt.  247,  20  Atl.  810;    Barnard  v. 
Lee,  97  Mass.  92;  Jones  v.  Kobbins,  29  Me.  351,  1  Am.  Rep.  593.     A 
•tlpulation  that  time  Is  of  the  essence  of  the  contract  was  disre- 
garded in  Merriam  v.  Goodlett,  36  Neb.  384,  54  N.  W.  686. 

•  Fry,  Spec.  Perf.  §  1077;    Brown  v.  Safe-Deposit  Co.,  128  U.  S. 
403,  9  Sup.  Ct  127,  32  L.  Ed.  468. 

b    »•  Cheney  v.  Libby,  134  U.  S.  68,  78,  10  Sup.  Ct  498,  33  L.  Ed.  818. 


§  275)      DEFENSES  IN  ACTION  FOB  SPECIFIC  PERFORMANCE.        551 

equity.11  But  the  time  specified  in  the  notice  must  be  rea- 
sonable; that  is,  long  enough  for  the  proper  doing  of  the 
things  required  to  be  done.12 

The  nature  of  the  property  itself  may  be  such  as  to  make 
time  the  essence  of  the  contract,  without  express  stipula- 
tion. Contracts  for  the  purchase  of  property  of  a  fluctuat- 
ing value  are  of  this  description; 18  as  in  the  case  of  mining 
property,14  or  stocks.16  And,  where  a  public  house  is  sold 
as  a  going  concern,  time  is  deemed  of  the  essence  of  the 
contract.16 

If  time  has  been  made  of  the  essence  of  the  contract  by 
agreement,  or  is  considered  so  by  reason  of  the  nature  of 
the  property,  or  becomes  so  by  notice  during  the  progress 
of  the  transaction,  it  may  be  enlarged  or  waived  by  subse- 
quent agreement,  or  by  the  conduct  of  the  parties.17 


SAME— STATUTE  OF  FBAUDS  AS  A  DEFENSE. 

875.  Though  a  contract  has  not  been   reduced  to 
writing    as    required     by     the    statute    of 
frauds,    equity    will  nevertheless  decree    a 
specific  performance  thereof  where 
(a)  There  has   been  a   part   performance  of  the 
contract. 

11  Taylor  v.  Brown,  2  Beav.  180;    Benson  v.  Lamb,  9  Beav.  502; 
King  v.  Wilson,  6  Beav.  126;  Reed  v.  Breeden,  61  Pa.  460;   Thomp- 
son v.  Dulles,  5  Rich.  Eq.  (S.  C.)  370;   Smith  v.  Lawrence,  15  Mich. 
499;   Carter  _v.  Phillips,  144  Mass.  100,  10  N.  E.  500. 

12  King  v.  Wilson,  6  Beav.  124;   Crawford  v.  Toogood,  13  Ch.  Div. 
153;   Green  v.  Sevin,  Id,  589;  Austin  v.  Wacks,  30  Minn.  335,  15  N. 
W.  409. 

is  Edwards  v.  Atkinson,  14  Tex.  373;  Wilson  v.  Roots,  119  111.  379, 
10  N.  E.  204;  Goldsmith  v.  Guild,  10  Allen  (Mass.)  239;  Jennison  v. 
Leonard,  21  Wall.  302,  22  L.  Ed.  539. 

i*  Waterman  v.  Banks,  144  U.  S.  394,  12  Sup.  Ct.  646,  36  L.  Ed. 
479;  Macbryde  v.  Weekes,  22  Beav.  533. 

15  Doloret  v.  Rothschild,  1  Sim.  &  S.  590. 

IB  Day  v.  Lubke,  L.  R.  5  Eq.  336. 

IT  Dana  v.  Investment  Co.,  42  Minn.  194,  44  N.  W.  55;  Merriam 
v.-Goodlett,  36  Neb.  384,  54  N.  W.  686;  Cartwright  v.  Gardner,  5 
Gush.  (Mass.)  273,  280,  281;  Boyes  v.  Liddell,  6  Jur.  725. 


552  SPECIFIC   PERFORMANCE.  (Ch.   21 

(b)  Fraud  has  been  used  to  prevent  the  contract 

from  being  properly  reduced  to  -writing. 

(c)  The  defendant  fails  to  plead    the  statute  as  a 

defense. 

The  statute  of  frauds  requires  a  contract  concerning  real 
estate  to  be  in  writing.  Notwithstanding  this  statute,  there 
are  many  cases  in  which  equity  has  interfered  out  of  its  re- 
gard for  considerations  which  the  courts  of  common  law 
refused  to  recognize.  The  reasoning  on  which  courts  of 
equity  have  acted,  in  what  has  been  termed  their  boldest 
encroachment  on  the  functions  of  the  legislature,1  is  this: 
The  statute  of  frauds  was  passed  to  prevent  fraud,  and 
never  could  have  been  intended  by  the  legislature  as  an  in- 
strument of  fraud;  and  therefore  a  man  who  has  procured 
some  benefit  from  another  on  the  faith  of  an  oral  promise 
will  not  be  permitted  to  turn  around,  and  fail  to  perform 
that  promise,  on  the  ground  that  the  formalities  required 
by  the  statutes  have  not  been  observed.  In  such  cases  the 
defendant  is  really  charged  upon  the  equities  resulting  from 
the  acts  done  in  execution  of  the  contract,  and  not  upon 
the  contract  itself.* 

Part  Performance. 

The  most  frequeut  cases  where  specific  performance  of 
contracts  for  the  sale  of  land  is  decreed,  notwithstanding 
the  statute  of  frauds,  are  those  where  the  contract  has  been 
in  part  performed.  The  doctrine  is  well  established  that, 
where  an  oral  agreement  for  the  sale  of  land  has  been  in 
part  performed  by  one  of  the  parties,  the  statute  of  frauds 
will  not  prevent  a  court  of  equity  from  decreeing  a  spe- 
cific performance  in  favor  of  the  other  party.*  This  doc- 

§  275.  i  Britain  v.  Rossiter.  11  Q.  B.  DIv.  123.  129;  Maddison  v. 
Alderson,  8  App.  Cas.  467,  2  Keener,  Eq.  Gas.  675. 

*  Maddison  v.  Alderson,  8  App.  Cas.  467,  474,  2  Keener,  Eq.  Cas. 
675. 

»  Maddison  v.  Alderson,  8  App.  Cas.  467,  2  Keener,  Eq.  Cas.  G75; 
Lester  v.  Foxcroft,  Colles,  108,  1  White  &  T.  Lend.  Cas.  Eq.  1027, 
1038,  1042;  Neale  v.  Neale,  9  Wall.  1,  19  L.  Ed.  590,  2  Keener.  Kq. 
Cas.  647,  651;  Freeman  v.  Freeman,  43  N.  Y.  34,  3  Am.  Rep.  t;r>7,  2 
Keener,  Eq.  Cas.  654;  Hiatt  v.  Williams,  72  Ma  214,  37  Am.  Itep. 
438;  Schuey  v.  Schaeffer,  130  Pa.  18.  18  Atl.  544;  McWhinno  v. 
Martin,  77  Wls.  182,  46  N.  W.  118;  Union  Pac.  Ry.  Co.  v.  McAlpine, 


§  275)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        553 

trine  seems  to  be  based  on  the  view  that,  where  a  man  has 
made  a  contract  with  another,  and  has  allowed  that  other 
to  act  upon  it,  he  may  have  created  an  equity  against  him- 
self which  he  cannot  resist  by  setting  up  the  want  of  formal- 
ity in  the  evidence  of  the  contract  out  of  which  the  equity 
in  part  arose.*  In  a  leading  case  on  the  subject,  specific 
performance  of  an  oral  agreement  was  decreed,  because  the 
plaintiff  had  incurred  considerable  expense  and  trouble  in 
pulling  down  an  old  house  and  building  new  ones,  according 
to  the  terms  of  the  agreement ;  it  being  considered  against 
conscience,  under  such  circumstances,  for  the  defendant  to 
plead  the  statute.5 

The  application  of  the  doctrine  of  part  performance  is 
limited  by  certain  well-established  principles. 

Same — Not  Applicable  to  Certain  Contracts. 

The  equity  of  part  performance  applies  only  to  contracts 
respecting  lands.  It  does  not  affect  other  contracts  within 
the  statute;  for  instance,  a  contract  not  to  be  performed 
within  a  year.6  But  this  doctrine  is  not  necessarily  con- 
fined to  agreements  for  the  sale  or  acquisition  of  an  inter- 
est in  land.  It  applies  to  a  parol  agreement  for  an  ease- 
ment, though  no  interest  in  land  is  intended  to  be  acquired.7 

Same — Must  be  Certain  and  Unequivocal. 

The  act  of  part  performance  must  be  unequivocal,  refer 
exclusively  to  the  contract,  and  be  such  as  would  not  have 
been  performed  but  for  such  contract.8  As  was  said  by 

129  U.  S.  305,  9  Sup.  Ct.  286,  C2  L.  Ed.  673;  Young  v.  Young,  45  N. 
J.  Eq.  34,  16  Atl.  921;  Starkey  v.  Starkey  (Ind.  Sup.)  36  N.  E.  287; 
Von  Trotha  v.  Bamberger,  15  Colo.  1,  24  Pac.  883;  Popp  v.  Swanke, 
68  Wis.  304,  31  N.  W.  916.  In  some  of  the  American  states,  how- 
ever, the  doctrine  of  part  performance  seems  to  be  rejected.  White 
v.  O'Bannon,  86  Ky.  93,  5  S.  W.  346;  Buchannon  v.  Little  (Ky.)  22 
S.  W.  559;  Holmes  v.  Holmes,  86  N.  C.  205;  Niles  v.  Davis,  60  Miss. 
750. 

*  Per  Lord  Selborne  In  Maddison  v.  Alderson,  8  App.  Gas.  4G7, 
476,  2  Keener,  Eq.  Gas.  675. 

s  Lester  v.  Foxcroft  (1701)  Colles,  108,  1  White  &  T.  Lead.  Gas. 
Eq.  1027. 

e  Britain  v.  Rossiter,  11  Q.  B.  Div.  123;  Osborne  v.  Kimball,  41 
Kan.  187,  21  Pac.  163;  Wahl  v.  Barnum,  116  N.  Y.  87,  98,  22  N.  B. 
280,  5  L,  R.  A.  623. 

T  McManus  v.  Cooke,  35  Ch.  Div.  681,  691. 

•  Allen  v.  Young,  88  Ala.  338,  6  South.  747;   Neibert  v.  Baghurst 


55 1  SPECIFIC    PERFORMANCE.  (Ch.    21 

Lord  O'Hagan:  "It  must  have  relation  to  the  one  agree- 
ment relied  on,  and  no  other.  It  must  be  such,  in  Lord 
Hardvvicke's  words,  as  could  be  done  with  no  other  view 
or  design  than  to  perform  that  agreement.  It  must  be 
sufficient  of  itself,  and  without  any  other  information  or  evi- 
dence, to  satisfy  a  court,  from  the  circumstances  it  has  cre- 
ated, and  the  relations  it  has  formed,  that  they  are  only 
consistent  with  the  assumption  of  the  existence  of  a  con- 
tract the  terms  of  which  equity  requires,  if  possible,  to  be 
ascertained  and  enforced."  • 

Same — Acts  must  Render  Nbnperformance  a  Fraud. 

The  principle  upon  which  the  court  exercises  jurisdiction 
in  adjudging  specific  performance  of  parol  contracts  followed 
by  part  performances  is  the  fraud  and  injustice  which  would 
result  from  allowing  the  party  charged  to  refuse  to  per- 
form his  part  after  performance  by  the  other  upon  the  faith 
of  the  contract,  and  with  the  knowledge  of  the  party  char- 
ged.10 The  acts  must  be  such  that  a  refusal  of  full  exe- 
cution would  operate  as  a  fraud  on  the  party  performing 
them,  and  place  him  in  a  situation  which  does  not  lie  in 
compensation.11  So,  where  the  acts  of  the  party  charged 
with  part  performance  have  caused  no  change  of  circum- 
stances in  the  other  party,12  and  are  not  such  as  to  render 
a  refusal  by  the  party  charged  to  perform  the  contract  a 
fraud  against  the  other  party,  the  jurisdiction  to  enforce  the 

(N.  J.  Ch.)  25  Atl.  474;  Rogers  v.  Wolfe,  104  Mo.  1,  14  S.  W.  805; 
Morrison  v.  Herrick,  130  111.  631,  642,  22  N.  E.  537;  Truman  v.  Tru- 
man, 79  Iowa,  506,  44  N.  W.  721;  Ogsbury  v.  Ogsbury,  115  N.  Y. 
21K).  29<i.  22  N7.  E.  219. 

o  Maddison  v.  Alderson,  8  App.  Cas.  467,  485,  2  Keener,  Eq.  Cas. 
67.").  Mr.  Fry  has  said:  "The  true  principle,  however,  of  the  opera- 
tion of  acts  of  part  performance,  seems  only  to  require  that  the 
acts  in  question  be  such  as  must  be  referred  to  some  contract,  and 
may  be  referred  to  the  alleged  one;  that  they  prove  the  existence 
of  some  contract,  and  are  consistent  with  the  contract  alleged." 
Fry,  Spec.  Perf.  §  582. 

10  Per  Grant,  M.  R.,  In  Buckmaster  v.  Harrop,  7  Ves.  346;   Miller 
V.  Ball,  64  N.  Y.  286,  2  Keener,  Eq.  Cas.  GT>7. 

11  Pond  v.  Sheean,  132  111.  312,  23  N.  E.  1018,  8  L.  R.  A.  414,  2 
Keener,  Eq.  Caa.  715;   Gallagher  v.  Gallagher,  31  W.  Va.  9,  13,  5  S. 
E.  2'.)7,  2  Keener,  Eq.  Cas.  696;  Barnes  v.  Railroad  Co.,  130  Mass.  388. 

i*  Caton  v.  Caton,  1  Ch.  App.  137:  Miller  v.  Ball,  64  N.  Y.  286,  2 
Keener,  Eq.  Cas.  657;  Glass  v.  Hulbert,  102  Mass.  24,  3  Am.  lii-p. 
418;  Purcell  v.  Miner,  4  Wall.  513,  18  L.  Ed.  433. 


§  27o)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        555 

contract,  notwithstanding  the  statute  of  frauds,  will  not  be 
exercised.18 

Same — Possession  and  Improvements. 

Whether  or  not  admission  into  possession  of  an  estate 
will  be  considered  part  performance  depends  upon  circum- 
stances. If  the  party  setting  up  the  oral  agreement  was 
already  in  possession,  as  tenant  of  the  vendor,  for  instance, 
then,  of  course,  his  continued  possession  has  of  itself  no 
significance,  and  therefore  is  not  evidence  of  the  alleged 
contract.14  That  a  stranger  should  be  found  in  acknowl- 
edged possession  of  the  land  of  another  is  strong  evidence 
of  an  antecedent  agreement,  and  is  usually  sufficient  to  war- 
rant an  application  for  relief  in  equity.15  But  the  possession 
must  be  shown  to  be  under  and  in  pursuance  of  the  con- 
tract sought  to  be  enforced.16  It  must  be  open  and  visi- 
ble 17  and  exclusive;  that  is,  "the  possession  of  vendee 
must  be  peaceful  and  undisputed."18  As  was  said  by  Mr. 
Justice  Grier,  the  proof  must  be  "that  delivery  of  possession 
has  been  made  in  pursuance  of  the  contract,  and  acquiesced 
in  by  the  other  party.  This  will  not  be  satisfied  by  proof 
of  a  scrambling  and  litigious  possession."19 

Possession  under  a  contract,  accompanied  by  expendi- 
tures made  with  the  actual  or  presumed  knowledge  of  the 
vendor,  for  the  permanent  improvement  of  the  estate,  is  uni- 
versally held  to  be  part  performance.20  Equity  proceeds 

is  Fry,  Spec.  Perf.  §  587. 

i*  Knoll  v.  Harvey,  19  Wis.  99;  Barnes  v.  Railroad  Co.,  130  Mass. 
388;  Johns  v.  Johns,  67  Ind.  440;  Recknagle  v.  Schmaltz,  72  Iowa, 
63,  33  N.  W.  3G5;  Ewins  v.  Gordon,  49  N.  H.  444. 

is  Morphett  v.  Jones,  1  Swanst.  181;  Mundy  v.  Jolliffe,  5  Mylne  & 
O.  167;  Paine  v.  Coombs,  1  De  Gex  &  J.  34,  46;  Eaton  v.  Whitaker, 
18  Conn.  222,  229,  44  Am.  Dec.  586;  Reed  v.  Reed,  12  Pa.  117;  Wal- 
lace v.  Scoggins,  17  Or.  476,  21  Pac.  558;  Morrison  v.  Herrick,  130 
111.  631,  642,  22  N.  E.  537,  2  Keener,  Eq.  Cas.  706;  Recknagle  v. 
Schmaltz,  72  Iowa,  63,  33  N.  W.  365. 

ia  Morrison  v.  Herrick,  130  111.  631,  22  N.  E.  537,  2  Keener,  Eq. 
Cas.  706;  Andrews  v.  Babcock,  63  Conn.  109.  26  Atl.  715;  Shahan 
V.  Swan,  48  Ohio  St.  25,  26  N.  E.  222,  29  Am.  St.  Rep.  517,  2  Keener, 
Eq.  Cas.  726;  Brown  v.  Brown,  33  N.  J.  Eq.  650. 

IT  Frostburg  Coal  Co.  v.  Thistle,  20  Md.  186;  Charpiot  v.  Sig^rson, 
25  Mo.  63;  Brawdy  v.  Brawdy,  7  Pa.  157. 

i«  Haslet  v.  Haslet,  6  Watts  (Pa.)  464. 

i»  Purcell  v.  Miner,  4  Wall.  513,  18  L.  Ed.  435. 

»o  Crook  v.  Corporation  of  Seaford,  6  Ch.  App.  551;    Freeman  y. 


556  SPECIFIC    PERFORMANCE.  (Ch.   21 

on  the  ground  that  it  would  be  fraud  for  the  vendor  to  al- 
low the  vendee  to  continue  in  possession,  and  expend  his 
money  in  improvements,  so  as  to  render  it  impossible  for 
the  partiea  to  be  restored  to  their  original  situations,  con- 
fessedly on  the  faith  of  an  agreement  of  sale,  and  then  try 
to  avail  himself  of  the  statute  of  frauds  to  avoid  the  con- 
tract.21 

Same — Ancillary  Acts. 

Acts  ancillary  to  an  agreement,  although  attended  with 
expense,  are  not  considered  acts  of  part  performance.  Thus, 
the  delivery  of  abstracts  of  title,  giving  orders  for  con- 
veyances, going  to  view  an  estate,  putting  a  deed  in  the 
solicitor's  hands  to  prepare  a  conveyance,  surveying,  and 
similar  acts,  do  not  have  the  effect  of  taking  the  agree- 
ment out  of  the  interdiction  of  the  statute.22 

Same — Acts  Capable  of  being  Undone. 

Acts  capable  of  being  undone,  and  admitting  of  the  par- 
ties being  remitted  to  their  original  position,  are  of  no  avail 
as  a  means  of  removing  the  prohibition  of  the  statute.  Thus 
a  part,  or  even  an  entire,  payment  of  the  purchase  money 
is  not  sufficient  of  itself  to  warrant  a  decree  of  the  specific 
performance  of  an  oral  contract,  because  that  may  be  re- 
covered in  an  action  at  law.28 

Freeman,  43  N.  Y.  34,  3  Am.  Rep.  657,  2  Keener,  Eq.  Cas.  654;  Moss 
v.  Culver,  64  Pa.  414;  Union  Pac.  Ry.  Co.  v.  McAlpine,  129  U.  S. 
305,  9  Sup.  Ct.  286,  32  L.  Ed.  673;  Neale  v.  Neale,  9  Wall.  1,  19  L.  Ed. 
590,  2  Keener,  Eq.  Cas.  647;  Burlingame  v.  Rowland,  77  Cal.  315, 
10  I'ac.  526,  1  L.  R.  A.  829;  Everett  v.  Dilley,  39  Kan.  73,  17  Pac. 
061;  Hunkins  v.  Hunklns,  65  N.  H.  95,  18  Atl.  665;  Potter  v.  Jacobs, 
111  Mass.  32;  Frame  v.  Frame,  32  W.  Va.  463,  9  S.  E.  901,  5  L.  R. 
A.  323;  Pond  v.  Sbeean,  132  11L  312,  23  N.  E.  1018,  8  L.  R.  A.  414,  2 
Keener,  Eq.  Cas.  715. 

21  Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252,  2  Keener,  Eq. 
Cas.  722. 

«  Hawkins  v.  Holmes,  1  P.  Wms.  770;  Pembroke  v.  Thorpe,  3 
Swnnst.  437,  note;  Phillips  v.  Edwards,  33  Beav.  440;  Lydlck  v.  Hol- 
land, 83  Mo.  703;  Nibert  v.  Baghurst,  47  N.  J.  201,  20  AtL  252,  2 
Keener,  Eq.  Cas.  722;  Colgrove  v.  Solomon,  34  Mich.  494. 

a»  Cllnan  v.  Cooke,  1  Schoales  &  L.  22,  40;  Hughes  v.  Morris,  2 
De  Gex,  M.  &  G.  349,  356;  Gallagher  v.  Gallagher,  31  W.  Va.  9,  14, 
6  S.  E.  297;  Townsend  v.  Fenton,  30  Minn.  528,  16  N.  W.  421;  Id., 
82  Minn.  482,  21  N.  W.  726;  Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20 
Atl.  252,  2  Keener,  Eq.  Cas.  722;  Winchell  v.  WLuchell,  100  N.  T. 


§  275)       DEFENSES  IN  ACTION  FOR  SPECIFIC  PERFORMANCE.        557 

Marriage  is  not  of  itself  a  sufficient  part  performance, 
since  the  statute  of  frauds  has  expressly  provided  that  every 
agreement  made  in  consideration  of  marriage  must  be  in 
writing.24  But  it  is  sufficient  if  an  antenuptial  verbal  agree- 
ment for  the  conveyance  of  land  is  followed,  not  only  by 
marriage,  but  by  the  expenditure  of  money.26 

Fraud  Preventing  Execution  of  Proper  Written  Contract. 

Where  the  agreement  was  intended  to  have  been  in  writ- 
ing, according  to  the  statute,  but  this  has  been  prevented 
from  being  done  by  the  fraud  of  the  defendant,  equity  has 
granted  specific  performance;  otherwise,  the  statute,  de- 
signed to  prevent  fraud,  would  be  used  as  a  protection  for 
it.28  Thus,  where  a  vendor  who  has  agreed  to  sell  certain 
land  receives  the  full  consideration,  and  then  fraudulently 
gives  a  deed  conveying  only  part  of  the  land,  specific  per- 
formance will  be  decreed,  even  though  the  contract  was 
oral.27 

Failure  to  Plead  Statute. 

The  statute  of  frauds  is  an  affirmative  defense,  and  is 
waived  unless  pleaded.28  Hence  the  court  will  specifically 
enforce  an  oral  contract  where  defendant  has  neglected  to 
claim  the  benefit  of  the  statute.29 

159,  163,  2  N.  E.  897;  Forrester  T.  Flores,  64  Oal.  24,  28  Pac.  107. 
Where  a  recovery  of  the  purchase  money  will  not  restore  vendee 
to  his  former  position,  he  will  be  entitled  to  specific  performance. 
Malins  v.  Brown,  4  N.  Y.  403.  Some  authorities  hold  payment  a 
sufficient  part  performance.  Stein  v.  Nysonger,  69  Iowa,  512,  29 
N.  W.  433;  Town  send  v.  Houston,  1  Har.  (Del.)  532. 

24  Warden  v.  Jones,  23  Beav.  487;  Peek  v.  Peek,  77  Cal.  106,  19 
Pac.  227,  1  L.  R.  A.  185;  Henry  v.  Henry,  27  Ohio  St.  121;  Adams 
v.  Adams,  17  Or.  247,  20  Pac.  633. 

26  Surcome  v.  Pinniger,  3  De  Gex,  M.  &  G.  571;  Welch  T.  Whelp- 
ley,  62  Mich.  15,  28  N.  W.  744. 

26  1  Story,  Eq.  Jur.  §  161. 

27  McDonald  v.  Yungbluth  (C.  C.)  46  Fed.  836;    Hltchins  v.  Pet- 
tingill,  58  N.  H.  386;   Murray  v.  Drake,  46  Cal.  648.     Contra,  Glass 
v.  Hulbert,  102  Mass.  24. 

28  Maybee  v.  Moore,  90  Mo.  340,  2  S.  W.  471;   McClure  v.  Otrich, 
118  111.  320,  8  N.  E.  784;  Crane  v.  Powell,  139  N.  Y.  379,  34  N.  E.  911. 

2»  Cooth  v.  Jackson,  6  Ves.  39;  Dodd  v.  Wakeman,  26  N.  J.  Eq. 
484;  Cloud  v.  Greasley,  125  111.  313,  17  N.  E.  826;  Shakespeare  v.  Al- 
ba, 76  Ala.  351;  Fall  v.  Hazelrigg,  45  Ind.  581;  Battell  v.  Matot,  58 
Yt.  271,  5  Atl.  479. 


553  SPECIFIC    PERFORMANCE.  (Ch.    21 


SPECIFIC  PERFORMANCE  WITH  A  VARIANCE. 

276.  Though  a   contract  cannot  be  strictly  carried 

out  according  to  its  terms,  specific  perform- 
ance •will  be  granted,  if  proper  compensa- 
tion can  be  made,  and  the  parties  put  in 
fact  in  the  same  situation  as  if  the  contract 
had  been  strictly  fulfilled. 

277.  Specific  performance  of  a  contract  not  capable 

of  literal  performance  will  be  decreed  with 
compensation  for  deficiencies  where  there 
is  a  variance 

(a)  As  to  the  time  in  which  the  contract  is  to  be 

performed. 

(b)  In  the  subject-matter  of  the  sale. 

The  specific  enforcement  of  contracts  which  cannot  be  lit- 
erally fulfilled,  with  a  compensation  for  deficiencies,  affords 
one  of  the  most  striking  illustrations  of  the  contrast  be- 
tween the  principles  and  methods  of  equity  and  those  which 
prevailed  in  courts  of  common  law.  At  law  a  vendor  can- 
not recover  part  of  the  purchase  money,  if  he  is  unable  to 
literally  perform  the  contract;  nor  can  the  purchaser  in- 
sist on  paying  a  part  only  in  case  of  a  partial  failure  in  the 
sale ; *  but  in  equity,  on  the  other  hand,  an  investigation 
will  be  made  as  to  whether  the  property  can  be  either  liter- 
ally or  substantially  transferred.  If  a  substantial  transfer 
can  be  made,  it  is  considered  in  equity  as  against  conscience 
to  take  advantage  of  similar  circumstances  of  variation.* 

Variance  as  to  Time. 

We  have  already  seen  that,  as  a  rule,  time  is  not  deemed 
the  essence  of  a  contract  in  equity,  but  in  all  cases  where 
specific  performance  has  been  decreed  notwithstanding  a 
discrepancy  in  time,  compensation  has  been  made  to  the 
party  injured  by  the  delay.  Ordinarily,  a  purchaser  is  en- 

K  276-277.     i  Adams,  Eq.  89. 

-  Hepburn  v.  Auld.  r.  Cr.uich,  2G2,  3  L.  Ed.  90;  Evans  v.  Kings- 
berry,  2  Hand.  (Va.)  120,  14  Am.  Dec.  770. 


§§  276-277)     SPECIFIC  PERFORMANCE  WITH  A  VARIANCE.      559 

titled  to  the  rents  and  profits  of  the  estate  from  the  time 
at  which  the  contract  ought  to  have  been  completed,  and 
the  vendor  is  entitled  to  interest  on  the  unpaid  purchase 
money  from  the  same  time.8  If  there  has  been  a  delay  in 
making  out  the  title,  and  the  property  has  deteriorated  by 
dilapidation  or  mismanagement,  compensation  will  be  al- 
lowed to  the  purchaser,*  but  not  for  deterioration  after  the 
time  when  he  ought  to  have  taken  possession,6  and,  of 
course,  not  for  deterioration  caused  by  himself.*  When 
time  is  of  the  essence  of  the  contract,  and  the  purchaser 
has  obtained  a  decree  for  specific  performance,  he  will  be  en- 
titled to  compensation  for  the  loss  which  he  has  sustained  in 
consequence  of  possession  not  having  been  given  to  him 
according  to  the  contract.7 

Variance  as  to  Subject- Matter. 

Frequently  a  contract  for  the  sale  of  land  cannot  be  liter- 
ally performed,  either  because  of  a  discrepancy  as  to  quan- 
tity, or  the  extent  of  the  estate  which  the  vendor  agreed 
to  convey.  The  cases  on  this  question  naturally  fall  into 
two  divisions,  according  as  to  whether  specific  performance 
is  demanded  by  the  vendor  or  by  the  purchaser: 

(i)  When  the  vendor  demands  specific  performance,  the 
relief  will  be  granted  on  allowing  the  purchaser  compen- 
sation, provided  the  contract  can  be  performed  in  substance ; 
but  it  must  be  clear  that  the  deficiency  is  not  substantial, 
for  a  purchaser  cannot  be  required  against  his  will  to  pay 
for  that  which  he  has  not  bought.8  Where  the  vendor  seeks 
the  specific  performance  of  a  contract,  equity  will  be  slow 
in  granting  the  relief,  and  will  in  all  cases  refuse  its  aid, 
unless  the  purchaser  can  be  put  in  substantially  as  favor- 
able a  condition  as  he  would  have  been  if  the  terms  of  the 
contract  had  been  fully  complied  with.9  It  has  been  held 
that  the  deficiency  of  twenty  acres  in  a  contract  for  the 

«  De  Visme  v.  De  Visme,  1  Macn.  &  G.  346;  Calcraft  v.  Roebuck, 
1  Ves.  Jr.  221;  Bostwick  v.  Beach,  105  N.  Y.  661,  663,  12  N.  E.  32. 

•  Foster  v.  Deacon,  3  Madd.  394;   Worrall  v.  Munn,  38  N.  Y.  137; 
Bostwick  v.  Beach,  105  N.  Y.  661,  12  N.  E.  32. 

B  Binks  v.  Rokeby,  2  Swanst.  226. 
«  Harford  v.  Furrier,  1  Madd.  532. 
'  Carrodus  v.  Sharp,  20  Beav.  56. 

•  Kenner  v.  Bitely  (C.  C.)  45  Fed.  133. 

•  Roberts'  Heirs  v.  Lovejoy,  60  Tex.  253,  257. 


660  SPECIFIC    PERFORMANCE.  (Ch.   21 

sale  of  three  hundred  acres  did  not  defeat  the  vendor's  right 
to  specific  performance,  the  purchase  price  being  propor- 
tionately abated ; 10  and  in  another  case,  where  there  was  a 
deficiency  of  four  acres  in  three  hundred,  performance  with 
compensation  was  decreed.11  On  the  sale  of  an  estate  with 
a  mansion  thereon,  a  similar  deficiency  in  that  part  of  the 
estate  which  is  near  the  house  may  be  material.12  And 
where  the  contract  was  for  the  sale  of  a  wharf  and  jetty,  and 
it  appeared  that  the  jetty  was  liable  to  be  removed  by  the 
corporation  of  London,  specific  performance  was  refused.13 
A  material  variation  with  respect  to  the  title  contracted  to 
be  sold  is  fatal  to  a  vendor's  suit  for  specific  performance. 
Thus,  a  contract  for  the  sale  of  a  freehold  estate  will  not 
be  enforced  in  favor  of  a  vendor  who  has  merely  a  lease- 
hold, however  long  the  term  of  the  lease  may  be.14  And 
the  rule  as  to  compensation  can  never  be  employed  to  com- 
pel a  purchaser  to  accept  a  doubtful  title,  or  one  different 
from  that  which  he  agreed  to  purchase,  or  one  which  may 
expose  him  to  litigation.15 

(2)  When  the  purchaser  insists  on  the  specific  perform- 
ance of  a  contract  by  a  vendor,  who  has  agreed  to  sell  a 
larger  interest  in  an  estate  than  he  has,  the  purchaser  is 
entitled  to  take  what  the  vendor  can  give,  and  demand  com- 
pensation for  what  he  cannot  give ; lfl  and  this  is  so  whether 
the  difference  is  one  of  tenure  or  of  quantity.17  This  has 
been  done  even  when  the  difference  in  quantity  amounted 
to  as  much  as  one-half.18  And  where  the  vendor's  wife  re- 

10  Morgan's  Adm'r  v.  Brast,  34  \V.  Va.  332,  12  S.  E.  710.    See,  also, 
Farrls  v.  Hughes  (Va.)  17  S.  E.  518. 

11  Stevenson  v.  Polk,  71  Iowa,  278,  32  N.  W.  340. 

»»  Perkins  v.  Ede,  16  Beav.  193;  Knatchbull  v.  Grueber,  3  Mer.  124. 

i«  Peers  v.  Lambert,  7  Beav.  546. 

»*  Drewe  v.  Corp,  9  Ves.  368. 

IB  Richmond  T.  Gray,  3  Allen  (Mass.)  25;  Irving  v.  Campbell,  121 
N.  Y.  354,  24  N.  E.  821,  8  L.  R.  A.  620;  Close  v.  Stuyvesant,  132  111. 
007,  24  N.  E.  868,  3  L.  R.  A.  161;  Jeffries  v.  Jeffries,  117  Mass.  184. 

i«Hlll  v.  Buckley,  17  Ves.  401;  Mortlock  v.  Buller,  10  Ves.  315; 
Walling  v.  Kinnard,  10  Tex.  508,  60  Am.  Dec.  216;  Barbers  v.  Gads- 
den,  6  Rich.  Eq.  (S.  C.)  284,  62  Am.  Dec.  390;  Bostwlck  v.  Beach, 
103  N.  Y.  414,  422,  9  N.  E.  41;  Docter  v.  Hellberg,  65  Wis.  415,  27 
N.  W.  176;  Lancaster  v.  Roberts,  144  111.  213,  33  N.  E.  27;  Roberts' 
Heirs  v.  Lovejoy,  GO  Tex.  253,  257. 

IT  Hughes  v.  Jones,  3  De  Gex,  P.  &  J.'  307;  Hooper  v.  Smart,  L. 
R.  18  Eq.  683. 

A«  Burrow  v.  Scammell,  19  Cb.  Div.  175. 


§§  276-277)     SPECIFIC  PERFORMANCE  WITH  A  VARIANCE.      561 

fused  to  join  in  the  deed,  and  to  release  her  inchoate  right 
of  dower,  the  purchaser  may  compel  specific  performance, 
with  the  abatement  of  the  price  equal  to  the  value  of  the 
wife's  interest  ascertained  by  the  use  of  the  standard  life 
tables; 19  but  the  courts  in  some  of  the  states  hold  that  the 
wife  will  not  be  indirectly  coerced  into  releasing  her  dower 
right,  and  that,  therefore,  the  purchaser  must  pay  the  full 
purchase  price,  if  he  insists  on  specific  performance,  with- 
out any  abatement  for  the  value  of  the  outstanding  inter- 
ests.20 If  the  vendor  agrees  to  convey  a  title  free  of  all 
incumbrances,  the  purchaser  may  compel  specific  perform- 
ance of  the  contract,  with  an  abatement  of  the  purchase 
price  to  the  extent  of  incumbrances.21 

It  sometimes  happens  that  in  a  suit  for  specific  perform- 
ance by  a  purchaser  it  appears  that  the  vendor  has  no 
title  whatever  to  any  portion  of  the  premises.  In  such  case 
the  rule  is  that  equity  will  retain  jurisdiction  to  award  dam- 
ages, if  the  suit  was  brought  in  good  faith,  without  knowl- 
edge of  the  defect.22 

Parol  Evidence  to  Show  Variation. 

As  was  stated  in  a  former  chapter,  the  rule  which  pro- 
hibits the  admission  of  parol  evidence  to  vary  a  written 
contract  has  no  application  to  cases  of  fraud  or  mistake.28 
It  is,  therefore,  a  well-established  principle  that  the  defend- 
ant may  resist  a  claim  for  the  specific  performance  of  a 
contract  by  the  use  of  parol  evidence  designed  to  show 
that  either  because  of  fraud  or  mistake  the  written  con- 
tract does  not  express  the  agreement,  and  that  its  enforce- 
ment would,  therefore,  be  inequitable.24  But  in  England 

*»  Jackson  v.  Edward,  7  Paige  (N.  Y.)  408;  Davis  v.  Parker,  14 
Allen  (Mass.)  94,  98,  104;  Bostwick  T.  Beach,  103  N.  Y.  414,  9  N.  E. 
43 ;  Martin  v.  Merritt,  57  Ind.  34,  26  Am.  Rep.  45. 

20  Graybill  v.  Braugh  (Va.)  17  S.  E.  558;    Burk's  Appeal,  75  Pa. 
141;  Borden  v.  Curtis,  46  N.  J.  Eq.  468,  19  Atl.  127;   Lucas  v.  Scott, 
41  Ohio  St.  636. 

21  Grant  v.  Beronio,  97  Cal.  496,  32  Pac.  556;   Hunt  v.  Smith,  139 
111.  296.  28  N.  E.  809. 

22  Cunningham  v.  Duncan,  4  Wash.  506,  30  Pac.  647;   Morgan  v. 
Bell,  3  Wash.  St.  554,  28  Pac.  925,  16  L.  R.  A.  614;  Combs  v.  Scott,  76 
Wis.  662,  45  N.  W.  532;  Milkman  v.  Ordway,  106  Mass.  232,  253. 

23  Ante,  p.  351. 

24  Clinan  v.  Cooke,  1  Schoales  &  L.  32,  39;    Manser  v.  Back,  6 
Hart-,  443. 

EATON.EQ.— 36 


562  SPECIFIC    PERFORMANCE.  (Ch.    21 

such  parol  evidence  is  not  admissible  in  favor  of  a  plain- 
tiff who  seeks  the  specific  performance  of  a  written  con- 
tract, with  a  variation  for  alleged  mistake  or  fraud,  on  the 
ground  that  the  court  would  thus  be  enforcing  an  oral  agree- 
ment in  violation  of  the  statute  of  frauds.26  This  distinc- 
tion is  very  generally  repudiated  in  this  country,  and  it  has 
been  generally  held  that  either  party  may  have  a  decree 
for  the  specific  performance  of  a  written  contract  with  such 
corrections  in  it  as  parol  proof  may  show  to  be  necessary 
to  correct  a  mistake  therein." 

*»  Woollam  v.  Hearn,  2  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.) 
920;  Townshend  v.  Stangroom,  6  Ves.  228. 

28  Gillespie  v.  Moone,  2  Johns.  Ch.  (N.  Y.)  585,  7  Am.  Dec.  559; 
Fishack  v.  Ball,  84  W.  Va.  644,  12  S.  E.  856;  Redfleld  v.  Gleason,  61 
Vt.  220,  17  Atl.  1075,  15  Am.  St  Rep.  889;  Strickland  v.  Barber,  78 
Mich.  310,  43  N.  W.  449. 


§278) 


INJUNCTION. 


663 


CHAPTER  TTXTL, 

INJUNCTION. 

278.  Definition. 

279-281.  Classification. 

282.  Principles  Governing  Jurisdiction. 

283.  When  Injunction  will  be  Granted — Classification. 

284.  Injunction  against  a  Legal  Proceeding. 

285.  Injunction  to  Prevent  Breach  of  Contract. 
286-287.  Injunctions  to  Prevent  Torts. 

288.  Protection  of  Other  than  Property  Rights. 

289.  Protection   of  Real  Property— Waste,  Trespass,  and 

Nuisance, 

290.  Protection  of  Patents,  Copyrights,  and  Trade-Marks. 

291.  Injunctions   against   Breach   of   Trust   and   Violation  of 

Equitable  Rights. 

292.  Injunctions  in  Matters  of  Taxation. 

293-294.    Injunctions  against  Public  Officers  and  Municipalities. 


DEFINITION. 

278.  An  injunction  is  a  judicial  order  operating  in 
personam,  requiring  a  party  to  do  or  to 
abstain  from,  doing  some  particular  act. 

A  writ  of  injunction  was,  and  still  is,  peculiarly  an  in- 
strument of  courts  of  equity,  though  there  were  some  cases 
where  courts  of  law  were  accustomed  to  exercise  analogous 
powers, — as  by  the  writ  of  prohibition  and  estrepement  in 
cases  of  waste.  The  cases,  however,  to  which  these  com- 
mon-law processes  were  applicable  were  so  few,  and  the 
processes  themselves  were  so  utterly  inadequate  for  the  pur- 
poses of  justice,  that  the  jurisdiction  at  law  fell  practically 
into  disuse,  and  almost  all  the  remedial  justice  of  this  sort 
came  to  be  administered  by  courts  of  equity.1 

The  interdict  of  the  Roman  law,  and  the  action  founded 
thereon,  furnished  to  the  early  chancellors  a  precedent  for 
the  remedy  of  injunction.  These  interdicts  were  pronounced 
by  the  praetors  in  the  exercise  of  their  extraordinary  or 
equitable  jurisdiction  for  the  purpose  of  mitigating  the  se- 

i  278.     i  Snell,  Eq.  p   481. 


564  INJUNCTION.  (Ch.  22 

verity  which  resulted  from  an  undeviating  adherence  to  the 
technical  forms  of  the  civil  law.a 

In  the  former  practice  in  equity  the  injunction  was  in 
the  form  of  a  writ,  and  this  is  still  the  case  in  the  federal 
courts,  and  in  the  courts  of  those  states  which  retain  a  sep- 
arate system  of  equitable  procedure.  In  most  of  the  states, 
and  also  in  England,  statutes  provide  for  the  granting  of 
temporary  injunctions  by  order,  and  of  permanent  injunc- 
tions by  a  final  decree.  While,  as  thus  stated,  modern  stat- 
utes have  modified  the  practice  in  respect  to  the  granting 
of  injunctions,  and  have  divided  them  into  temporary  and 
permanent  injunctions,  according  to  their  duration,  the  prin- 
ciples, doctrines,  and  rules  which  determine  and  regulate 
the  exercise  of  the  jurisdiction  of  equity  in  respect  to  in- 
junctions remain  unchanged.  And  the  provisions  of  the 
Codes  of  the  several  states  which  specify  the  cases  in  which 
injunctions  will  be  granted  do  not  materially  alter  the  set- 
tled equitable  jurisdiction,  except  in  reference  to  injunctions 
against  actions  or  judgments  at  law.8 

CLASSIFICATION. 

279.  Injunctions  are  either  mandatory  or   prevent- 

ive. 

280.  A  mandatory  injunction  is  one  which  requires 

the  doing  of  a  particular  thing,  and  com- 
pels the  defendant  to  restore  things  to 
their  former  condition.1 

281.  A  preventive  injunction  is  one  -which  is  grant- 

ed for  the  purpose  of  restraining  the  con- 
tinuance 01  commission  of  some  act  by  the 
defendant  -which  is  injurious  to  the  plaintiff. 

The  granting  of  mandatory  injunctions  is  not  frequent, 
since,  in  the  absence  of  a  contract,  it  was  formerly  held  that 
a  court  of  equity  could  not  directly  compel  the  performance 

•  Joyce,  InJ.  2. 

«  Pom.  Eq.  Jur.  1337. 

K  279-28L     »  Joyce,  InJ.  1309,  1310. 


§§  279-281)  CLASSIFICATION.  665 

of  a  positive  act.  Because  of  this  doubt  of  the  right  of  a 
court  of  equity  to  interfere,  it  sometimes  accomplished  the 
same  object  in  an  indirect  form.  Thus  railroad  companies 
have  been  prevented  by  mandatory  injunctions  from  enter- 
ing into  agreements  not  to  transfer  goods  at  rates  fixed  by 
law;  that  is,  to  compel  them  to  observe  the  law  and  regu- 
late their  rates  according  to  statute.2 

It  seems  well  established  at  the  present  time  that  a  court 
of  equity  may  compel  by  injunction  the  performance  of  a 
positive  act.  As  was  said  by  Lord  Justice  Cotton:  "This 
court,  when  it  sees  that  a  wrong  is  committed,  has  a  right 
at  once  to  put  an  end  to  it,  and  has  no  hesitation  in  doing 
so  by  a  mandatory  injunction,  if  it  is  necessary  for  the 
purpose."8  In  a  recent  New  Jersey  case  the  injunction  was 
in  the  following  language:  "That  the  defendants  do  desist 
and  refrain  from  further  performing  and  carrying  into  effect 
the  laws,"  etc.,  "and  that  the  P.  Company,"  etc.,  "do  desist 
and  refrain  from  continuing  to  control  the  right  of  the  C. 
Company,  and  that  the  C.  Company  do  desist  and  refrain 
from  permitting  the  P.  Company,"  etc.,  "to  operate  its  road, 
and  that  the  C.  Company  do  again  resume  control  of  all 
its  property  and  franchises  and  performance  of  all  its  cor- 
porate duties."  *  The  last  of  these  directions  is  clearly  man- 
datory, not  only  in  effect,  but  in  terms.  As  suggested  by 
Mr.  Bispham,5  there  would  seem  to  be  no  good  reason  why 
a  direct  form  of  decree  similar  to  the  one  quoted  should  not 
be  used. 

The  most  frequent  use  of  mandatory  injunctions  is  in 
cases  of  nuisances,  where  the  court  may  compel  an  abate- 
ment or  removal.  This  jurisdiction,  however,  is  exercised 
only  in  cases  which  admit  of  no  other  remedy,  and  will  al- 
ways be  refused  if  the  injury  can  be  reasonably  compensated 
in  damages,  or  even  if  the  balance  of  evidence  is  strongly 

2  Rogers  Locomotive  &  Machine  Works  v.  Railway  Co.,  20  N.  J. 
Eq.  379.  So  an  injunction  against  trustees  of  a  church,  who  had 
wrongfully  excluded  the  minister,  did  not  command  them  to  open 
the  church  to  him,  but  to  desist  and  refrain  from  keeping  it  closed. 
Whitecar  v.  Michenor,  37  N.  J.  Eq.  6,  14. 

•  Loog  v.  Bean,  26  Ch.  Div.  314. 

*  Stockton  v.  Railroad  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964,  17  L.  R.  A. 
97;    Stockton  v.  Railroad  Co.,  50  N.  J.  Eq.  489,  25  Atl.  942.     See, 
also,  Hall's  Appeal,  112  Pa.  42,  3  Atl.  783. 

e  Bisp.  Eq.  (Gth  Ed.)  §  400. 


566  INJUNCTION.  (Ch.  22 

on  the  side  of  the  defendant.8  By  far  the  most  frequent 
use  of  injunctions  is  the  prevention  of  a  meditated  wrong, 
rather  than  the  redress  of  an  injury  already  done,  and  the 
principles  hereafter  cited  and  commented  upon  generally 
apply  to  such  injunctions.  The  remarkable  difference  be- 
tween these  injunctions  and  the  legal  remedy  of  damages  is 
that  they  will  be  granted  in  advance  of  an  injury,  provided 
only  an  intention  to  do  an  act  which  will  result  in  irreparable 
injury  is  shown  to  exist. 

Classification  as  to  Duration. 

Injunctions,  with  respect  to  their  duration,  are  either  tem- 
porary or  permanent.  Temporary  injunctions,  which  are 
also  termed  interlocutory  or  preliminary  injunctions,  are 
made  pending  the  hearing  of  the  case  on  its  merits,  and  are 
generally  expressed  so  as  to  continue  until  a  final  deter- 
mination can  be  had.  Such  injunctions  are  merely  provi- 
sional, and  do  not  conclude  a  right.  Their  object  is  to 
preserve  the  property  which  is  the  subject  of  the  litigation 
in  statu  quo  until  the  rights  of  the  parties  in  respect  thereto 
have  been  determined.  Such  injunctions  may  be  obtained 
by  the  plaintiff  when  he  shows  that  he  has  a  fair  question 
to  raise  as  to  the  existence  of  the  right  alleged  by  him.7 
Permanent  injunctions,  or  final  or  perpetual  injunctions,  as 
they  are  sometimes  called,  are  granted  on  the  final  hear- 
ing on  the  merits,  and  perpetually  restrain  the  defendant 
from  the  assertion  of  a  right  or  the  commission  of  some  act 
contrary  to  equity.8 

PRINCIPLES    GOVERNING   JURISDICTION. 

282.  To  -warrant  the  issuance  of  an  injunction,  the 
complainant  must  show  : 

(a)  That  he  has  no  plain,  adequate,  and  complete 

remedy  at  law. 

(b)  That  an  irreparable  injury  will  result  unless 

the  relief  is  granted. 

•  Deere  v.  Guest,  1  Mylne  &  C.  516;  Jacomb  v.  Knight,  3  De  Gex, 
J.  &  S.  538. 

T  Blakemore  v.  Canal  Nav.,  1  Mylne  &  K.  154;  High,  Inj.  S  6- 

•  High,  I nj.  I  3, 


§   282)  PRINCIPLES    GOVERNING   JURISDICTION.  567 

Adequacy  of  Legal  Remedy. 

A  court  of  equity  will  not  lend  its  aid  for  the  prevention 
of  wrongs  or  the  protection  of  rights  by  the  granting  of 
an  injunction,  if  the  party  aggrieved  has  a  full,  complete, 
and  adequate  remedy  at  law.  As  is  said  by  Prof.  Pomeroy : 
"The  restraining  power  of  equity  extends  through  the  whole 
range  of  rights  and  duties  which  are  recognized  by  the 
law,  and  would  be  applied  to  every  case  were  it  not  for 
certain  reasons  of  expediency  and  policy  which  control  and 
limit  its  exercise."  x  These  considerations  of  expediency 
and  policy  confine  the  exercise  of  the  jurisdiction  of  equity 
to  those  cases  in  which  the  legal  remedy  is  not  full  and 
adequate.  It  is  not  sufficient,  to  authorize  the  remedy  by 
injunction,  that  a  violation  of  a  naked  legal  right  of  prop- 
erty is  threatened.2  In  no  case  can  equity  restrain  the 
breach  of  a  contract,  or  the  commission  of  a  tort,  if,  by  an 
action  at  law,  adequate  compensatory  damages  can  be  re- 
covered. The  question  in  all  cases  is  whether  the  legal 
remedy  is  full  and  complete.  If  the  legal  remedy  does  not 
fully  come  up  to  the  requisites  of  the  case,  the  exercise  of 
the  jurisdiction  may  be  proper  and  beneficial.3  And  when- 
ever the  rights  of  the  party  aggrieved  cannot  be  protected 
or  enforced  in  the  ordinary  course  of  proceedings  at  law, 
except  by  numerous  and  expensive  suits,  a  court  of  equity 
may  properly  interpose  and  afford  relief  by  injunction.4 

Irreparable  Injury. 

Equity  interferes  in  the  transactions  of  men  by  preventive 
measures  only  when  irreparable  injury  is  threatened  and 
the  law  does  not  afford  an  adequate  remedy  for  the  con- 
templated wrong.5  The  term  "irreparable  injury"  does  not 
mean  that  there  must  be  no  physical  possibility  of  repair- 
ing the  injury,  but  merely  that  the  threatened  injury  is"  a 

§  282.  i  Pom.  Eq.  JUT.  §  1338;  Tuchman  v.  Welch  (C.  C.)  42  Fed. 
548,  539. 

2  McHenry  v.  Jewett,  90  N.  Y.  58. 

«  Lumley  v.  Wagiier,  1  De  Gex,  M.  &  G.  616;  Watson  v.  Suther- 
land, 5  Wall.  74,  18  L.  Ed.  580;  Payne  v.  Railroad  Co.  (C.  O.)  46 
Fed.  546;  Irwin  v.  Lewis,  50  Miss.  363. 

*  Pennsylvania  Coal  Co.  v.  Canal  Co.,  31  N.  Y.  91;  Wheelock  v. 
Noonan,  108  N.  Y.  179,  15  N.  E.  67;  Warren  Mills  v.  Seed  Co.,  65 
Miss.  391,  4  South.  298. 

e  Thomas  v.  Protective  Union,  121  .N.  Y.  48,  52,  24  N   E.  24. 


568  INJUNCTION.  (Ch.  22 

grievous  one,  or,  at  least,  a  material  one,  and  not  adequately 
reparable  by  damages."  If  the  act  complained  of  threatens 
to  destroy  the  subject-matter  in  controversy,  the  case  may 
come  within  the  principle,  even  though  the  damages  may 
be  capable  of  being  accurately  measured.7  The  facts  al- 
leged upon  which  the  complainant  bases  his  demand  must 
show  more  than  a  remote  possibility  that  injury  will  result 
from  the  threatened  action.  "Injury,  material  and  actual, 
not  fanciful  or  theoretical,  or  merely  possible,  must  be  shown 
as  the  necessary  or  probable  result  of  the  action  sought  to 
be  restrained."8 


WHEN  INJUNCTION  WILL   BE    GRANTED— CLASSI- 
FICATION. 

283.  The  remedy  by  injunction  may  be  used     to 
restrain 

(a)  Proceedings  at  law. 

(b)  Breach  of  contract. 

(c)  Commission  of  torts. 

(d)  Breach    of  trust,   and  violation  of  equitable 

rights. 

(e)  The  collection  of  illegal  taxes. 

(f)  Violation    of    law     by    public     officers    and 

municipal  corporations. 

It  is  not  possible,  within  the  limits  of  a  work  of  this  char- 
acter, to  specify  every  case  to  which  the  remedy  of  in- 
junction might  be  applied.  All  that  can  be  attempted  is 
an  illustration  of  the  circumstances  in  which  the  remedy  is 
most  usually  sought ;  and  it  is  believed  that  whatever  other 
cases  may  suggest  themselves  will  be  found  to  fall  within 
some  one  of  the  classes  indicated. 

•  Plnchln  v.  Railway  Co.,  6  De  Gex,  M.  &  G.  860;    Puckette  v. 
Judge,  39  La.  Ann.  901,  2  South.  801;   Dudley  v.  Hurst,  67  Md.  44,  8 
All.  901,  1  Am.  St.  Rep.  368;    Hodge  v.  Giese,  43  N.  J.  Eq.  342,  11 
Atl.  184. 

T  Hilton  v.  Earl  of  Granvllle,  Craig  &  P.  283,  292. 

•  Genet  v.  President,  etc.,  122  N.  Y.  505,  529,  25  N.  E.  922;   People 
T.  Canal  Board,  55  N.  Y.  390,  397. 


£   284)  AGAINST   A    LEGAL   PROCEEDING.  669 

INJUNCTION  AGAINST  A  LEGAL  PROCEEDING. 

284.  Equity  will  interfere  to  restrain  a  proceeding 
at  law  whenever,  through  mistake,  ac- 
cident, or  fraud,  or  otherwise,  one  of  the 
parties  to  an  action  at  law  obtains,  or  is 
likely  to  obtain,  an  unfair  advantage  over 
the  other,  so  as  to  make  the  legal  proceed- 
ing an  instrument  of  injustice.1 

Against  Prosecution  of  Actions  at  Law. 

In  the  exercise  of  its  jurisdiction  by  injunction  against  a 
legal  proceeding,  a  court  of  equity  claims  no  supremacy 
over  a  court  of  law,  since  the  injunction  is  in  no  sense  a 
prohibition  upon  the  action  of  the  court  of  law.  The  in- 
junction is  directed,  not  to  the  court,  but  to  the  litigant 
parties,  and  in  no  manner  denies  the  jurisdiction  of  the 
legal  tribunal.2  It  is  granted  on  the  sole  ground  that,  from 
certain  equitable  circumstances,  of  which  the  court  of  eq- 
uity granting  the  process  has  cognizance,  it  is  against  con- 
science that  the  party  inhibited  should  proceed  in  the  cause. 
The  object  really  is  to  prevent  an  unfair  use  being  made 
of  the  process  of  a  court  of  law,  in  order  to  deprive  another 
party  of  his  just  rights,  or  to  subject  him  to  some  unjust 
vexation  or  injury  which  is  wholly  irremediable  by  a  court 
of  law.8 

Since  these  injunctions  rest  on  the  refusal  or  inability  of 
common-law  courts  to  consider  equitable  defenses,  it  fol- 
lows that  the  relief  will  not  be  granted  upon  grounds  of 
which  the  party  aggrieved  might  have  availed  himself  iiT 
an  action  at  law,  and  in  all  such  cases  the  parties  will  be 
left  to  defend  at  law.* 

§  284.  i  Earl  Oxford's  Case,  1  Ch.  R.  1,  2  White  &  T.  Lead.  Cas. 
Eq.  (4th  Am.  Ed.)  G01. 

2  High,  Inj.  §  45.     Compare  In  re  Schuyler's  Steam  Towboat  Co., 
13G  N.  Y.  169,  32  N.  E.  623,  20  L,  R.  A.  391,  reversed  on  another  point 
154  U.  S.  256,  14  Sup.  CL  1019,  38  L.  Ed.  981,  sub   nom.  Moran  v. 
Sturges. 

3  Story,  Eq.  Jur.  §  875.     Compare  provisions  of  federal  bankruptcy 
act  as  to  staying  actions  in  state  courts  during  bankruptcy  pro- 
ceedings. 

*  New  York  Dry-Dock  Co.  v.  Trust  Co.,  11  Paige  (N.  Y.)  384;  Palm- 


570  INJUNCTION.  (Ch.  22 

In  England,  and  in  those  states  in  this  country  where, 
by  the  adoption  of  the  reformed  procedure,  equity  and  law 
are  administered  by  the  same  courts,  injunctions  against  the 
prosecutions  of  actions  at  law  have  become  infrequent,  since 
the  defendant  may,  in  a  legal  action,  avail  himself  of  any  equi- 
table defense  he  may  have.  But  the  jurisdiction  of  courts 
of  equity  in  those  states  to  restrain  proceedings  at  law  in 
cases  where  the  exercise  of  this  jurisdiction  is  essential  to 
the  complete  administration  of  justice  and  the  proper  se- 
curity of  the  rights  of  litigants  has  not  been  abrogated  or 
abridged  in  any  of  its  essential  features  by  the  union  of 
law  and  equity  in  a  single  tribunal.8  Such  jurisdiction  will 
be  exercised  when  necessary  to  prevent  interference  where 
the  jurisdiction  of  equity  has  once  attached,  and  such  inter- 
ference would  render  the  jurisdiction  ineffectual.8 

Against  Judgments. 

Courts  of  equity  did  not,  however,  confine  themselves  to 
restrain  the  prosecution  of  actions  at  law,  but  at  a  very 
early  day  the  chancellor  claimed  the  right  to  arrest  the  fruits 
of  an  unconscionable  judgment  rendered  by  courts  of  law. 
The  common-law  judges  refused  from  the  first  to  bow  to 
these  injunctions,  and  they  asserted  the  right  to  release  on 
habeas  corpus  suitors  in  their  courts  who  had  been  impris- 
oned for  contempt  in  violating  such  injunctions.7  In  the 
celebrated  Case  of  the  Earl  of  Oxford,8  decided  during  the 
reign  of  King  James  I.,  Lord  Chancellor  Ellsmere  stated 
the  rule  to  be :  "Where  a  judgment  is  obtained  by  oppres- 
sion, wrong,  and  a  hard  conscience,  the  chancellor  will  frus- 
trate and  set  it  aside,  not  for  any  error  or  defect  in  the  judg- 
ment, but  for  the  hard  conscience  of  the  party."  Soon  after 

er  v.  Hayes.  93  Ind.  189;  Womack  v.  Powers,  50  Ala.  5;  Palmer  v. 
Gardiner.  77  111.  143;  Dubuque  &  S.  C.  Ry.  Co.  v.  Railway  Co..  70 
Iowa,  702.  39  N.  W.  691. 

5  Fielding  v.  Lucas,  87  N.  Y.  197,  200;  Erie  R.  Co.  v.  Ramsey,  45 
N.  Y.  637. 

«  Pom.  Eq.  Jur.  §§  1370-1374;  Wood  v.  Swift,  81  N.  Y.  31;  Platto 
v.  Deuster,  22  WIs.  482;  Revalk  v.  Kraemer,  8  Cal.  66,  68  Am.  Dec. 
804. 

i  Kerley,  Hist.  Eq.  89.  So,  also,  in  Throgmorton  v.  Finch,  3  Inst. 
124,  4  Inst.  86,  cited  Cro.  Jac.  344,  the  common-law  judges  resolved 
that  after  judgment  at  law  there  could  be  no  relief  In  equity. 

•  2  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.)  GUI. 


§    284)  AGAINST    A    LEGAL   PROCEEDING.  571 

this  decision,  the  common-law  judges,  led  by  Lord  Coke, 
made  an  ineffectual  attempt  to  put  an  end  to  the  chancellor's 
interference  with  their  judgments ;  but  on  appeal  to  the  king 
the  question  was  finally  settled  in  favor  of  the  chancery  ju- 
risdiction.9 

The  right  to  an  injunction  against  a  judgment  is  deter- 
mined by  the  following  rules:  (i)  If,  after  judgment,  ad- 
ditional circumstances  are  discovered,  not  cognizable  at  law, 
but  converting  the  controversy  into  a  matter  of  equitable 
jurisdiction,  the  court  of  chancery  will  interfere.  (2)  Even 
though  the  circumstances  so  discovered  would  have  been 
cognizable  at  law  if  known  in  time,  yet,  if  their  nondiscovery 
has  been  caused  by  fraudulent  concealment,  the  fraud  will 
warrant  an  injunction.  (3)  But,  if  the  newly-discovered 
facts  would  have  been  cognizable  at  law,  and  there  have 
been  no  fraudulent  concealments,  the  mere  fact  of  their 
late  discovery  does  not  give  a  right  to  injunctive  relief;  and 
still  less  so  if  the  facts  were  known  at  the  time  of  the  trial, 

»  Shortly  after  the  decision  in  the  Earl  of  Oxford's  Case,  an  in- 
junction was  issued  to  stay  proceedings  on  a  judgment  obtained,  it 
was  said,  by  the  plaintiff  inveigling  the  defendant's  witnesses  into 
an  alehouse  while  the  hearing  was  going  on.  Lord  Ellesmere  was 
ill  at  the  time,  and  it  was  thought  unlikely  that  he  would  recover. 
The  common-law  judges  seized  this  opportunity,  and  Lord  Coke  ad- 
vised the  plaintiff's  attorney  to  indict  the  defendant,  his  counsel, 
and  all  concerned  in  obtaining  the  injunction,  of  a  praernunire,  un- 
der 27  Edw.  III.,  for  impeaching  a  judgment;  and  in  the  following 
term  he  persuaded  Choke,  J.,  in  charging  the  grand  jury,  to  tell 
them  to  inquire,  among  other  things,  of  such  persons  as  questioned 
judgments  by  bill,  and  he  himself  strongly  pressed  the  jury  to  find 
true  bills  against  one  such  person;  but  they,  having  a  wholesome 
fear  that  to  be  employed  as  a  weapon  in  the  contest  between  the 
chancellor  and  the  chief  justice  would  bring  but  little  profit  and 
much  danger,  altogether  declined  to  follow  his  advice.  The  chief 
justice,  moreover,  announced  that  any  counsel  who  signed  a  bill 
praying  an  inquiry  into  the  circumstances  of  a  Judgment  would  find 
his  mouth  closed  forever  in  the  common-law  courts,  an  even  more 
severe  measure  than  the  imprisonment  by  which  a  barrister  In 
Elizabeth's  reign  had  been  driven  to  humble  apologies  for  the  same 
offense,  for,  until  centuries  afterwards,  there  was  no  separate  chan- 
cery bar.  The  lord  chancellor  appealed  to  the  king,  and  the  matter 
was  referred  to  Bacon  (then  attorney  general)  and  other  lawyers. 
They  reported  in  favor  of  the  chancery  jurisdiction,  on  the  ground 
that  it  had  been  exercised  for  a  long  time;  and  the  question  was 
accordingly  settled  in  the  chancellor's  favor.  Kerley,  Hist  Eq.  113, 


572  iNjUKCTioN.  (Ch.  22 

and  the  grievance  complained  of  has  been  caused  either  by 
a  mistake  in  pleading  or  other  mismanagement,  or  by  a 
supposed  error  in  the  judgment  of  the  court.10 

In  modern  times  the  enlarged  powers  of  courts  of  com- 
mon law  to  grant  new  trials  for  errors  and  mistakes  occur- 
ring during  the  trial  have  rendered  equitable  interference 
with  judgments  of  rare  occurrence,  except  where  tainted 
with  fraud;  and  in  this  respect  the  court  proceeds  on  the 
principles  which  govern  it  in  setting  aside  deeds  and  other 
contracts  for  fraud  and  mistake.11 

10  Adams,  Eq.  p.  107;  Bateinan  v.  Willoe,  1  Schoales  &  L.  201; 
Harrison  v.  Nettleship,  2  Mylue  &  K.  423;  Taylor  v.  Sheppard,  1 
Youuge  &  C.  Ex.  271.  In  Hendrickson  v.  Hinckley,  17  How.  443,  445, 
15  L.  Ed.  123,  124,  Mr.  Justice  Curtis  stated  the  principle  as  fol- 
lows: "A  court  of  equity  does  not  interfere  with  judgments  at  law, 
unless  the  complainant  has  an  equitable  defense,  of  which  he  could 
not  avail  himself  at  law,  because  it  did  not  amount  to  a  legal  de- 
fense, or  had  a  good  defense  at  law  of  which  he  was  prevented  from 
availing  himself  by  fraud  or  accident,  unmixed  with  negligence  of 
himself  or  agents."  See,  to  same  effect,  Phillips  v.  Pullen,  45  N.  J. 
Eq.  5.  16  Atl.  9;  Nevins  v.  McKee,  61  Tex.  412;  Headley  v.  Bell,  84 
Ala,  346,  4  South.  391;  Darling  v.  Mayor,  etc.,  51  Md.  1;  Knox  Co. 
v.  Harsham,  133  U.  S.  152,  10  Sup.  Ct  257,  33  L.  Ed.  586;  Warner  v. 
Conaut,  24  Vt  351,  58  Am.  Dec.  178;  Danaher  v.  Prentiss,  22  Wis. 
311.  Ignorance  or  mistake  of  party's  own  counsel  does  not  author- 
ize injunction  against  judgment,  Hambrick  v.  Crawford,  55  Ga.  335; 
Brownson  v.  Reynolds,  77  Tex.  254,  13  S.  W.  986;  Vaughan  v.  Hew- 
itt, 17  S.  C.  442;  nor  error  of  court  during  trial,  since  there  is  a  rem- 
edy by  appeal,  Cassel  v.  Scott,  17  Ind.  514;  Reynolds  v.  Horine,  13 
B.  Mon.  (Ky.)  234;  Vaughn  v.  Johnson,  9  N.  J.  Eq.  173. 

113  Pom.  Eq.  Jur.  §  1365.  Fraud  practiced  by  successful  party 
Is  ground  for  injunction  against  judgment.  Greenwaldt  v.  May,  127 
Ind.  511,  27  N.  E.  158,  22  Am.  St.  Rep.  600;  Gates  v.  Steele,  58  Conn. 
31(5.  20  Atl.  474,  18  Am.  St  Rep.  268;  Taylor  v.  Railroad  Co.,  8(5 
Tenn.  228,  6  S.  W.  393;  Wagner  v.  Shank,  59  Md.  313;  Murphy  v. 
Smith,  86  Mo.  333.  By  the  English  judicature  act  of  1873,  §  24  (5), 
It  was  enacted  that  no  injunction  should  issue  from  the  court  of 
chancery  to  restrain  proceedings  at  law,  but  that  any  matter  of 
equity  which,  before  the  act,  would  have  been  a  sufficient  ground 
for  obtaining  aa  Injunction,  could,  after  the  act,  be  relied  on  as 
a  defense  in  the  proceedings.  This  section  does  not  Interfere  with 
the  granting  of  an  Injunction  restraining  the  institution  of  proceed- 
ings. Besant  v.  Wood.  12  Ch.  Dlv.  630. 


§  285)       TO  PREVENT  BREACH  OF.  CONTRACT.          673 


INJUNCTION  TO  PREVENT  BREACH  OF  CONTRACT. 

285.  Injunctions  -will  be  granted  to  prevent  the 
breach  of  a  contract  where  such  breach 
will  result  in  irreparable  injury  not  ca- 
pable of  being  adequately  compensated  in 
damages. 

If  it  appears  that  the  complainant  has  an  adequate  remedy 
at  law  for  the  threatened  breach  of  a  contract,  a  court 
of  equity  will  refuse  to  lend  its  aid.1  The  jurisdiction 
will  be  exercised  in  case  of  oral  as  well  as  written  con- 
tracts.2 Any  valid  contract,  the  breach  of  which  will 
cause  mischief  which  cannot  be  repaired  or  well  estimated, 
will  provide  a  basis  for  such  jurisdiction.3  And  it  need 
not  be  shown  that  the  threatened  act  would  be  a  violation  of 
the  express  terms  of  the  contract,  if  it  appear  that  it  would 
be  a  violation  of  its  spirit  and  meaning,4 — as  where  the 
defendant,  an  actress,  by  her  contract  with  the  plaintiff, 
agreed  to  appear  in  seven  performances  in  each  week  given 
by  the  plaintiff,  it  was  held  that,  as  it  was  not  possible  for 
her  to  perform  elsewhere  without  violating  her  contract, 
the  fact  that  it  did  not  contain  a  negative  clause,  binding 
her  not  to  appear  elsewhere,  was  not  a  ground  for  refusing 
the  plaintiff  an  injunction.5 

An  injunction  against  the  breach  of  a  negative  contract  is 
similar  to  a  decree  for  its  specific  performance.  Where  the 
contract  contains  express  negative  as  well  as  positive  terms, 

§  285..  i  West  v.  Cobb,  63  Ga.  341;  Hill  v.  Staples,  85  Ga.  863,  11 
S.  E.  967;  Harkinson's  Appeal,  78  Pa.  196,  21  Am.  Rep.  9;  Steinau 
v.  Gas  Co.,  48  Ohio  St.  324,  27  N.  E.  545;  Burdon  Cent.  Sugar  Re- 
fining Co.  v.  Leverich  (C.  C.)  37  Fed.  67;  Bailey  v.  Collins,  59  N.  H. 
459. 

2  Hubbard  v.  Miller,  27  Mich.  15,  15  Am.  Rep.  153 f  Spier  v. 
Lambdin,  45  Ga,  319. 

s  McClurg's  Appeal,  58  Pa.  51;  Manhattan  Mfg.  &  Fertilizing  Co. 
V.  Market  Co.,  23  N.  J.  Eq.  161. 

*  Richardson  v.  Peacock,  26  N.  J.  Eq.  40;  Wright  v.  Evans,  2  Abb. 
Prac.  N.  S.  (N.  Y.)  308. 

o  Duff  v.  Russell  (N.  Y.  Super.  Ct.)  14  N.  Y.  Supp.  134,  affirmed  fn 
16  N.  Y.  Supp.  958,  affirmed  on  opinion  below  in  133  N.  Y.  678,  31  N. 
E.  622. 


574  INJUNCTION.  (Ch.  22 

i 

and  the  positive  terms  are  capable  of  specific  performance 
by  the  court,  the  court  may  enforce  by  injunction  the  ob- 
servance of  the  negative  terms.6  It  does  not  follow,  how- 
ever, that  an  injunction  will  only  issue  against  a  breach  of 
a  contract  which  can  be  specifically  enforced.7  An  injunc- 
tion will  be  granted  where  it  can  operate  to  bind  men's  con- 
science, as  far  as  they  can  be  bound,  to  a  true  and  literal 
performance  of  their  agreement.8 

Contracts  Concerning  Real  Estate. 

It  is  generally  presumed  that  the  violation  of  a  contract 
relating  to  real  estate,  the  result  of  which  will  be  injurious 
to  the  inheritance,  is  irreparable  at  law.  Whenever  a  cove- 
nant in  a  deed  or  lease  restricts  the  use  to  which  the  prem- 
ises may  be  put, — as  not  to  erect  certain  classes  of  improve- 
ments, or  not  to  use  such  premises  for  the  sale  of  liquor, — 
an  injunction  will  issue,  as  a  matter  of  course,  against  its 
violation,  not  only  by  the  original  parties,  but  by  any  sub- 
sequent purchaser  or  assignee  with  notice.8  In  this  coun- 
try it  has  generally  been  held  that  the  violation  of  contracts 
and  covenants  concerning  the  manner  of  holding,  using, 
and  disposing  of  realty  places  the  burden  of  proving  that 
no  serious  or  irreparable  injury  would  result  upon  the  de- 
fendant; and  where  it  is  not  made  clear  at  a  trial  whether 
the  plaintiff  can  obtain  full  damages  at  law  for  the  violation 
of  a  covenant, — for  instance,  not  to  build  a  pond,  or  in- 
cumber  a  certain  right  of  way, — an  injunction  against  such 
violation  is  discretionary  with  the  trial  court, and,  havingbeen 
granted,  will  not  be  disturbed.10  A  tenant  will  be  restrained 
from  using  the  leased  premises  for  any  purpose  or  in  any 
manner  which  would  be  violative  of  the  covenants  of  his 
lease,  whether  or  not  irreparable  or  serious  injury  would 

•  Pry,  Spec.  Perf.  §  1148. 

i  Singer  Sewiug-Mach.  Co.  v.  Embroidery  Co.,  1  Holmes,  253,  Fed. 
Cas.  No.  12,904;  Stelnau  v.  Gas  Co.,  48  Ohio  St.  324,  27  N.  E.  545; 
Wolverhainpton  &  W.  Ry.  Co.  v.  RaJlway  Co,,  L.  R.  16  Eq.  433,  438. 

•  Kerr,  InJ.  426;  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  619. 

•  Tulk  v.  Moxhay,  2  Phil.  Ch.  777;    RenaJs  v.  Cowllshaw,  9  Ch. 
Dlv.  130,  11  Ch.  Dlv.  860;  Trustees  of  Columbia  College  v.  Thacher, 
87  N.  Y.  311,  41  Am.  Rep.  365;    Godfrey  v.  Black,  39  Kan.  193,  17 
Pac.  849,  7  Am.  St  Rep.  544;   Morris  v.  Manufacturing  Co.,  83  Ala, 
&<:.•">.  3  South.  (589;  Gnwtry  v.  Lelnnd,  40  N.  .T.  Eq.  323. 

10  Dexter  v.  15eard»  63  Hun,  638,  7  N.  Y.  Supp.  LL 


§  285)       TO  PREVENT  BREACH  OF  CONTRACT.          575 

result  from  such  violation.11  The  act  in  violation  of  the 
covenants  of  the  lease  need  not  amount  to  waste,  but  it  is 
sufficient  if  it  is  in  contravention  of  such  covenants,  or  of  an 
agreement  which  may  be  implied  from  the  dealings  between 
the  parties.12  In  all  cases  involving  the  restraint  of  a  breach 
of  a  covenant  in  a  contract  respecting  real  property,  it  is 
not  for  the  court,  but  for  the  plaintiff,  to  estimate  the  amount 
of  damages  that  arises  from  the  injury  inflicted  upon  him 
by  such  breach.  The  breach  itself  constitutes  an  injury,  and 
the  court  has  no  right  to  measure  it,  and  cannot  refuse  to 
the  plaintiff  specific  performance  of  his  contract  by  way  of 
injunction  against  such  breach.18 

Contracts  not  to  Engage  in  Business. 

Preventive  relief  is  frequently  granted  to  parties  who  seek 
to  restrain  the  violation  of  provisions  in  contracts  for  not 
engaging  in  a  particular  business  or  profession  in  a  certain 
locality.  The  validity  of  such  a  contract  generally  depends 
upon  the  reasonableness  of  the  limitation.  If  it  attempts  to 
prevent  a  person  from  resuming  his  business  or  calling  in 
the  whole  state,  it  is  invalid,  because  in  restraint  of  trade, 
and  its  violation  will  not  be  enjoined.14  And  it  has  been 
held  that  the  prohibitory  terms  of  such  a  contract  do  not  ex- 
tend to  a  member  of  a  partnership  bound  by  it  after  a  dis- 
solution of  such  a  partnership,  unless  it  is  expressly  pro- 
vided in  the  contract  or  appears  by  clear  implication.13 
Subject  to  the  rule  as  to  the  reasonableness  of  the  limita- 
tion, the  court  will  prevent  by  injunction  the  violation  of 
provisions  in  such  contracts,  whereby  one  of  the  parties 
agrees  not  to  engage  in  a  certain  business  or  profession  in  a 
specified  locality.18  A  covenant  not  to  engage  in  business 

11  Steward  v.  Winters,  4  Sandf.  Ch.  (N.  Y.)  587;   Barrow  v.  Rich- 
ard, 8  Paige  (N.  Y.)  357,  35  Am.  Dec.  713.    And  see  Kerr,  Inj.  86; 
Spell.  Extr.  Relief,  §  498. 

12  Frank  v.  Brunnemann,  8  W.  Va.  462;    Parker  v.  Garrison,  61 
111.  250;   Lewis  v.  Christian,  40  Ga.  187. 

is  Per  Jessel,  M.  R.,  in  Leech  v.  Schweder,  9  Ch.  App.  463,  465. 

i*  Lange  v.  Werk,  2  Ohio  St.  520;  Baumgarten  v.  Broadaway,  77 
N.  C.  8. 

IB  Baker  v.  Pottmeyer,  75  Ind.  451. 

i«  McClnrg's  Appeal,  58  Pa.  51;  (in  case  of  publishers)  Beal  v. 
Chase,  31  Mich.  490;  Spicer  v.  Hoop,  51  Ind.  365;  (innkeepers)  Stines 
v.  Dorman,  25  Ohio  St.  580;  McAlister  v.  Howell,  42  Ind.  15;  Elliot's 


576  INJUNCTION.  (Ch.  22 

will  not,  however,  be  implied  from  a  sale  of  the  business,  or 
even  of  the  good  will ;  and,  unless  there  is  a  restrictive  cove- 
nant in  the  contract  of  sale,  an  injunction  will  not,  as  a  rule, 
issue  to  restrain  the  vendor  from  carrying  on  the  same  bust- 
ness  in  the  neighborhood.17 

Contracts  for  Personal  Services. 

We  have  already  seen  that  a  court  of  equity  will  not  de- 
cree the  specific  performance  of  the  contract  for  personal 
services ; ls  nor  will  it  enjoin  the  violation  of  restrictive  cove- 
nants in  such  contracts,  nor  compel  the  affirmative  perform- 
ance from  day  to  day,  or  the  affirmative  acceptance  of  mere- 
ly personal  services.19  A  breach  of  contract  for  ordinary 
personal  services,  not  peculiar  in  their  character,  will  not  be 
restrained  since  the  remedy  at  law  in  damages  is  adequate ;  20 
but,  where  the  services  are  of  a  special,  unique,  and  extraor- 
dinary character,  and  the  contract  contains  a  covenant  not 
to  perform  similar  services  for  any  other  reason  during  the 
existence  of  the  contract,  a  breach  of  such  a  covenant  may 
be  restrained  by  an  injunction.  The  leading  case  on  this 
subject  is  that  of  Lumley  v.  Wagner,21  where  the  defendant 
had  entered  into  a  contract  with  the  plaintiff  to  sing  at  his 

Appeal,  60  Pa.  161;  (attorneys)  Smalley  v.  Greene,  52  Iowa,  241,  3 
N.  W.  78,  33  Am.  Rep.  207;  (druggists)  Baker  v.  Cordon,  86  N.  C. 
116,  41  Am.  Rep.  448;  Ward  v.  Hogan,  11  Abb.  N.  C.  (N.  Y.)  478; 
(dressmakers)  Morgan  v.  Perharnus,  36  Ohio  St.  517,  38  Am.  Rep. 
607;  (dentists)  Cook  v.  Johnson,  47  Coun.  175,  36  Am.  Rep.  64;  (un- 
dertakers) Hall's  Appeal,  60  Pa.  458,  100  Am.  Dec.  584;  (physicians) 
Thayer  v.  Younge,  86  Ind.  259;  Pickett  v.  Green,  120  Ind.  584,  22  N. 
E.  737.  Some  of  the  later  cases  have  upheld  contracts  in  restraint 
of  trade,  though  unlimited  territorially.  Diamond  Match  Co.  v. 
Roeber,  106  N.  Y.  473,  13  N.  E.  419,  60  Am.  Rep.  464;  Leather  Cloth 
Co.  v.  Lorsont,  39  Law  J.  Ch.  86;  Rousillon  v.  Rousillon,  14  Oh.  Div. 
851. 

IT  Cruttwell  v.  Lye,  17  Ves.  335;  Churton  v.  Douglas,  Johns.  Eng. 
Ch.  174;  Close  v.  Flesher  (Com.  PI.)  28  N.  Y.  Supp.  737.  In  Massa- 
chusetts a  restrictive  covenant  was  implied  from  a  sale  of  the  good 
will.  Dwight  v.  Hamilton,  113  Mass.  175. 

is  Ante,  p.  531. 

i»  Arthur  v.  Oakes,  11  C.  C.  A.  209,  63  Fed.  318,  25  L.  R.  A.  414. 

so  Win.  Rogers  Mfg.  Co.  v.  Rogers,  58  Conn.  356,  20  Atl.  467,  7  L. 
R.  A.  779,  18  Am.  St.  Rep.  278;  Cort  v.  Lnssard,  18  Or.  221,  22  Pac. 
Kir. I.  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726;  Burney  v.  Ryle,  01  Ga. 
701,  17  S.  E.  986. 

>i  1  De  Gex,  M.  &  G.  616. 


§§    286-287)  TO    PREVENT   TORTS.  577 

theater  for  three  months,  and  not  to  sing  at  any  other  the- 
ater during  such  period.  Although  the  agreement  to  sing 
at  the  plaintiff's  theater  was  of  such  a  nature  that  its  spe- 
cific performance  could  not  be  decreed,  an  injunction  was 
issued  to  restrain  the  defendant  from  singing  at  a  rival 
theater.28 


INJUNCTIONS  TO  PREVENT  TORTS. 

286.  Wherever  a  right    exists  or  is  created  which 

is  cognizable  by  law,  a  violation  of  that 
right  will  be  prevented  by  injunction, 
provided 

(a)  The   injury  is  such  that   it   cannot   be   ade- 

quately compensated  in  damages,  or  at  least 
not  without  the  necessity  of  a  multiplicity 
of  actions  for  that  purpose. 

(b)  There  is  an  actual  violation  of  a  legal  right 

by  the  defendant,  or  a  probability  or  dan- 
ger of  such  violation. 

287.  An  injunction  will  not  be  granted  where  the 

injury  is  trivial  in  amount,  or  where  the 
court,  in  its  discretion,  considers  that  dam- 
ages should  alone  be  given. 

By  far  the  most  important  class  of  injunctions  is  that 
dealing  with  wrongs  independent  of  contract.  The  juris- 
diction to  restrain  actions  and  judgments  at  law,  once  im- 
portant, is  gradually  becoming  less  so,  owing  to  reasons  here- 
tofore stated.  With  respect  to  contracts,  the  usual  equita- 

22  See,  also,  Cort  v.  Lassard,  18  Or.  221,  22  Pac.  1054,  6  IX  R.  A. 
653,  17  Am.  St.  Rep.  726;  Daly  v.  Smith,  49  How.  Prac.  150;  Mc- 
Caull  v.  Braham  (C.  G.)  16  Fed.  37;  Metropolitan  Exhibition  Co.  v. 
"Ward  (Sup.)  9  N.  Y.  Supp.  779;  Duff  v.  Russell  (Super.  N.  Y.)  14  N. 
Y.  Supp.  134,  affirmed  on  appeal  133  N.  Y.  678,  31  N.  E.  622,  where  it 
was  held  that  a  negative  covenant  is  sometimes  Implied  to  devote 
the  entire  time  to  a  business.  And  see  Pratt  v.  Montegriffo,  57 
Hun,  587,  10  N.  Y.  Supp.  903;  Allegany  Baseball  Club  y.  Bennett 
(C.  C.)  14  Fed.  257. 

EATON.EQ.— 37 


578  INJUNCTION.  (Ch.  22 

ble  remedy  is  by  way  of  specific  performance,  ana  the  right 
to  injunctive  relief  is  limited  to  a  comparatively  small  class 
of  cases,  generally  of  a  negative  character.  With  respect 
to  wrongs  independent  of  contract,  however,  the  restraining 
process  of  equity  extends  throughout  the  whole  range  of 
property  rights  and  duties  recognized  by  municipal  law. 
Although  the  jurisdiction  of  equity  is  in  general  so  exten- 
sive, it  is  restrained  and  modified  by  considerations  of  con- 
venience, and  equity  will  not  interfere  where  the  breach  of  a 
duty  or  the  violation  of  a  right  may  be  completely  and  ade- 
quately paid  for  by  damages  at  law,  or  where  other  reasons 
of  justice  and  convenience  are  against  and  in  contravention 
of  equity.1  As,  for  instance,  injunction  will  not  lie  where 
the  act  to  be  enjoined  is  political  or  governmental,  nor  where 
the  issuance  thereof  would  prevent  the  exercise  of  executive 
discretion,  or  where  its  effect  would  be  to  determine  the  title 
to  a  public  office.2  Under  the  old  cases  the  rule  was  that 
the  jurisdiction  should  be  exercised  only  to  protect  prop- 
erty rights,  but  there  seems  at  the  present  time  to  be  a  tend- 
ency in  both  the  English  and  American  courts  to  restrain  by 
injunction  every  species  of  torts  for  which  damages  are  not 
an  adequate  remedy,  whether  the  wrong  be  to  property,  per- 
son, or  reputation. 

To  warrant  the  issuance  of  a  temporary  injunction  before 
the  hearing  on  the  merits,  the  plaintiff  must  be  able  to  show 
a  fair  prima  facie  case  in  support  of  the  title  which  he  as- 
serts.8 There  should  be  no  real  doubt  as  to  the  existence 
of  the  plaintiff's  legal  right,4  and  there  must  be  ground  for 
the  allegation  that  the  act  which  he  seeks  to  prevent  is  a 
wrongful  act.6  If  the  legal  right  of  the  plaintiff  is  not  dis- 
puted, but  the  fac*  of  its  violation  is  denied,  he  must  be  able 
to  show  that  the  act  complained  of  is  an  actual  violation  of 

5§  286,  287.  1  Snell,  Eq.  492;  Pom.  Eq.  Jur.  §  1338;  Gaslight  & 
Coke  Co.  v.  Vestry  of  St.  Mary  Abbotts,  15  Q.  B.  Div.  1;  Tuchman 
t.  Welch  (C.  C.)  42  Fed.  548,  559. 

»  Belknap  v.  Schlld,  101  U.  S.  10,  16  Sup.  Ct  443.  40  L.  Ed.  599; 
Heffran  v.  Hutching.  160  111.  550,  43  N.  E.  709;  Goldsworthy  v. 
Boyle.  175  Pa.  254,  34  All.  030. 

a  Saunders  v.  Smith,  3  Mylne  &  C.  714,  728;  Hilton  v.  Earl  of 
Grnnrille.  Crai-  &  l\  L.-.S3,  292. 

«  National  Docks  It.  Co.  v.  Railroad  Co.,  32  N.  J.  Eq.  755;  Mam- 
moth Velu  Consol.  Coal  Co.'s  Api>f:il.  ~>4  I'M.  183. 

•  Sparrow  v.  KaJlroad  Co.,  9  Hare,  436,  441. 


§    288)  TO    PREVENT   TORTS.  579 

the  right,'  or  is  at  least  an  act  which  must,  if  carried  into 
effect,  necessarily  result  in  a  ground  of  action.7  The  mere 
prospect  of  injury,  or  the  mere  belief  that  the  act  may  or 
will  be  done,  is  not  sufficient ;  8  but,  if  an  intention  to  do  the 
act  complained  of  can  be  shown  to  exist,  or  if  a  man  insists 
in  his  right  to  do,  or  begins  to  do,  or  gives  notice  of  his  in- 
tention to  do,  an  act  which  must,  in  the  opinion  of  the  court, 
if  completed,  give  a  ground  of  action,  there  is  a  basis  for 
the  exercise  of  the  jurisdiction.9  After  the  establishment  of 
a  property  right  on  a  trial  on  the  merits,  and  of  the  fact  of  its 
violation,  the  complainant  is  entitled  as  of  course  to  a  per- 
manent injunction  to  prevent  the  recurrence  of  the  wrong. 


SAME— PROTECTION  OF  OTHER  THAN  PROPERTY 

RIGHTS. 

288.  As  a  general  rule,  an  injunction  will  not  is- 
sue to  protect  other  than  property  rights 
from  violation,  unless  a  breach  of  trust, 
confidence,  or  contract  is  also  involved. 

The  English  court  of  chancery  had  no  power  to  grant  in- 
junctions, except  in  cases  where  there  was  injury,  either  ac- 
tual or  prospective,  to  civil  property.1  It  therefore  pos- 
sessed no  jurisdiction  to  restrain  by  injunction  the  publica- 
tion of  a  libel,  or  the  making  of  slanderous  statements  cal- 

« Imperial  Gaslight  &  Ooke  Co.  v.  Broadbent,  7  H.  L.  Gas.  600; 
Ripon  v.  Hobart,  3  Mylne  &  K.  1G9,  176. 

7  Raines  v.  Taylor,  10  Beav.  75;  Goodhart  v.  Hyett,  25  Ch.  Div. 
190. 

s  Ripon  v.  Hobart,  3  Mylne  &  K.  174;  Haines  v.  Taylor,  10  Beav. 
75;  Lutheran  Church  v.  Maschop,  10  N.  J.  Eq.  57;  Jenny  v.  Crase,  1 
Cranch,  C.  C.  443,  Fed.  Gas.  No.  7,285. 

»  Attorney  General  v.  Forbes,  2  Mylne  &  O.  123,  132;  Cooper  v. 
Whittingham,  15  Ch.  Div.  501;  Attorney  General  v.  Board,  22  Ch. 
Div.  221 ;  McArter  v.  Kelly,  5  Ohio,  139;  Owen  v.  Ford,  49  Mo.  436; 
Diedrichs  v.  Railroad  Co.,  33  Wis.  219;  East  &  West  R.  Co.  v.  Rail- 
road Co.,  75  Ala,  275. 

§  288.  i  Huggonson's  Case,  2  Atk.  469;  Gee  v.  Pritchard,  2 
Swanst.  402,  413;  Seeley  v.  Fisher,  11  Sim.  581,  583;  Fleming  v. 
Newton,  1  H.  L.  Cas.  363,  371,  370;  Emperor  of  Austria  y.  Day,  3 
De  Gex,  F.  &  J.  217,  238-241;  Kerr,  Inj.  p.  1. 


580  INJUNCTION.  (Ch.  22 

dilated  to  injure  a  man  in  his  business.1  The  judicature  act 
of  1873,  which  abolished  the  ancient  English  courts,  and  sub- 
stituted in  their  place,  the  supreme  court  of  judicature,  con- 
ferred on  that  court  the  power  to  grant  injunctions  whenever 
it  appeared  to  the  court  to  be  just  and  convenient.8  Sir 
George  Jessel,  commenting  on  this  provision,  said :  "Prob- 
ably it  is  still  true  that,  as  a  general  rule,  the  court  only  in- 
terferes where  there  is  some  question  as  to  property.  I  do 
not  think  that  the  interference  of  the  court  is  absolutely 
confined  to  that  now."  *  It  is  accordingly  held  in  England 
that,  where  a  libel  is  calculated  to  injure  the  plaintiff  in  his 
trade  or  business,  an  injunction  may  be  granted ; 5  and  even 
an  oral  slander,  which  is  detrimental  to  the  business  of  the 
plaintiff,  may  be  enjoined.8  The  American  courts,  however, 
have  refused  to  follow  these  recent  English  decisions;  and 
the  publication  of  a  libel,  no  matter  how  injurious  to  the 
plaintiff's  business,  will  not  be  enjoined ;  partly  because  the 
jurisdiction  of  equity  does  not  extend  to  false  representa- 
tions as  to  the  character  or  quality  of  the  plaintiff's  prop- 
erty or  his  title  thereto,  which  involve  no  breach  of  trust  or 
of  contract,  and  partly  because  to  grant  such  an  injunction 
would  result  in  establishing  a  censorship  over  the  press,  in 
violation  of  the  constitutional  provision  granting  freedom  of 
speech  and  of  the  press ; T  but,  if  the  publication  is  not  only 
libelous,  but  is  intended  to  frighten  away  the  plaintiff's  cus- 
tomers, and  intimidate  them  from  dealing  with  him,  an  in- 
junction against  its  circulation  will  be  granted.* 

a  Prudential  Assur.  Co.  v.  Knott,  10  Ch.  App.  142. 

»  Acts  3G  &  37  Viet.  c.  CO,  §  25,  subsec.  8. 
*    *  Aslatt  v.  Corporation  of  Southampton,  10  Ch.  Div.  148. 

8  Thorley's  Cattle  Food  Co.  v.  Massam,  14  Ch.  Dlv.  703;  Quartz 
Hill  Consol.  Gold  Min.  Co.  v.  Beall,  20  Ch.  Div.  501;  Hill  v.  Hart- 
Da  vies,  21  Ch.  Div.  798;  Hay  ward  v.  Hay  ward,  34  Ch.  Div.  198. 

«  Loog  v.  Bean,  20  Ch.  Div.  300. 

T  Kidd  v.  Horry  (C.  C.)  28  Fed.  773;  Boston  Diatite  Co.  v.  Manu- 
facturing Co.,  114  Mass.  09,  19  Am.  Rep.  310;  Whitehead  v.  Kitson, 
119  Mass.  484;  Mayer  v.  Association,  47  N.  J.  Eq.  519,  20  Atl.  492; 
New  York  Juvenile  Guardian  Soc.  v.  Roosevelt,  7  Daly  (X.  Y.)  188; 
Brandreth  v.  Lance,  8  Paige  (N.  Y.)  24,  34  Am.  Dec.  308;  Singer 
Mfg.  Co.  v.  Machine  Co.,  49  Ga.  70,  15  Am.  Rep.  674, 

•  Threats  to  prosecute  plaintiff's  customers  for  infringement  of 
patent,  Kmack  v.  Kane  (C.  C.)  34  Fed.  47;  Grand  Rapids  School 
Furniture  Co.  v.  Furniture  Co.,  92  Mich.  558,  52  N.  W.  1009,  11  L.  R. 
A.  721,  31  Am.  St.  Rep.  Oil;  Shoemaker  v.  Arrester  Co.,  135  Ind. 


§    288)  TO    PREVENT   TORTS.  581 

A  decision  of  the  general  term  (now  appellate  division) 
of  the  supreme  court  of  the  state  of  New  York  held  that  the 
exhibition  of  a  statute  of  a  deceased  person  as  a  typical 
philanthropist  should  be  enjoined  at  the  suit  of  her  relatives, 
on  the  sole  ground  that  such  exhibition  would  cause  them 
mental  pain,  distress,  and  disgrace,  for  which  no  damages 
would  afford  an  adequate  remedy.  But  this  decision  was 
reversed  by  the  court  of  appeals  on  the  ground  that  there 
was  no  reasonable  cause  in  the  act  complained  of  for  this 
mental  distress  and  injury.  But  the  court  distinctly  held 
that  the  surviving  relatives  have  a  right  to  protect  the  mem- 
ory of  the  deceased  and  their  own  feelings  from  a  substantial 
injury  existing  in  something  more  than  a  mere  supersensi- 
tive  and  morbid  mental  caprice.  This  would  tend  to  show 
that  in  New  York  there  is  a  tendency  to  extend  the  remedy 
beyond  the  mere  protection  of  property.8  In  a  recent  case 
the  federal  circuit  court  for  the  district  of  Massachusetts 
refused  to  enjoin  the  publication  of  a  biography  of  a  de- 
ceased person,  not  libelous  or  scandalous  in  its  nature, 
though  the  publication  injured  the  feelings,  and  was  under- 
taken against  the  express  prohibition,  of  his  widow  and  chil- 
dren.10 But  it  is  worthy  of  note  in  this  connection  that  as 
far  back  as  Lord  Eldon's  time  it  was  a  settled  doctrine  of 
equity  that  injury  to  feelings  was  no  ground  for  injunctive 
relief." 


471,  35  N.  E.  380,  22  L.  R.  A.  332;  boycotting  circulars,  Casey  v. 
Union  (C.  C.)  45  Fed.  135,  12  L.  R.  A.  193. 

»  Schuyler  v.  Curtis,  64  Hun,  594,  19  N.  T.  Supp.  264,  1  Keener, 
Eq.  Cas.  95,  reversed  in  147  N.  Y.  434,  42  N.  E.  22,  31  L.  R.  A.  286, 
49  Am.  St.  Rep.  671.  "On  the  right  to  privacy,"  see  note  in  1 
Keener,  Eq.  Cas.  95. 

10  Corliss  v.  E.  W.  Walker  Co.  (C.  C.)  57  Fed.  434. 

»i  In  Gee  v.  Pritchard  (1818)  2  Swanst.  402,  where  the  author  of 
private  letters  sought  to  enjoin  their  publication  by  the  receiver, 
plaintiff's  counsel  in  argument  stated  that  an  attempt  would  be 
made  to  sustain  the  injunction,  on  the  ground  that  the  publication  of 
the  letters  would  be  painful  to  the  feelings  of  plaintiff.  "The  Lord 
Chancellor:  I  will  relieve  you  also  from  that  argument.  The  ques- 
tion will  be  whether  the  bill  has  stated  facts  of  which  the  court  can 
take  notice,  as  a  case  of  civil  property,  which  it  is  bound  to  protect. 
The  injunction  cannot  be  maintained  on  any  principle  of  this  sort: 
that,  if  a  letter  has  been  written  in  the  way  of  friendship,  either  the 
continuance  or  discontinuance  of  that  friendship  affords  a  reason 
for  the  interference  of  the  court"  The  injunction  was  finally  sus- 


582  IMJUNCTION.  (Ch.  22 

SAME— PROTECTION    OF  REAL   PROPERTY— WASTE, 
TRESPASS,  AND  NUISANCE. 

289.  Equity  will  interfere  to  protect  real  property 
from  irreparable  injury  by  certain  torts, 
such  as  waste,  trespass,  and  nuisance. 

Waste. 

Waste  is  a  substantial  injury  to  the  inheritance,  done  by 
one  having  a  limited  estate,  either  of  freehold  or  for  years, 
during  the  continuance  of  his  estate.1  The  essential  char- 
acter of  waste  is  that  the  party  committing  it  is  in  rightful 
possession,  and  that  there  is  privity  of  title  between  the 
parties.2  As  was  stated  by  Judge  Story :  "The  jurisdiction 
of  courts  of  equity  to  interpose  by  way  of  injunction  in  cases 
of  waste  may  be  referred  to  the  broadest  principles  of  social 
justice.  It  is  exerted  where  the  remedy  at  law  is  imperfect 
or  is  wholly  denied ;  where  the  nature  of  the  injury  is  such 
that  preventive  remedy  is  indispensable,  and  it  should  be 
permanent;  where  matters  of  discovery  and  account  are 
incidental  to  the  proper  relief;  and  where  equitable  rights 
and  equitable  injuries  call  for  redress,  to  prevent  a  mali- 
cious, wanton,  and  capricious  abuse  of  their  legal  rights 
and  authorities  by  persons  having  but  temporary  and  lim- 
ited interests  in  the  subject-matter."  8  The  interference  of 
equity  in  cases  of  waste  depends  on  much  latitude  of  discre- 
tion in  the  court,  and  has  come  to  be  allowed  very  much 
as  a  matter  of  course.4  But  it  has  been  held  that,  if  the  in- 
jury is  not  irreparable,  but  is  susceptible  of  perfect  com- 
pensation, and  for  which  the  party  may  obtain  adequate  sat- 
isfaction, the  injunction  should  not  be  granted.5  It  may 
be  stated  as  a  well-established  principle  that  an  injunc- 

• 

tained,  on  the  ground  that  the  publication  of  the  letters  by  the  re- 
ceiver was  an  invasion  of  the  property  rights  of  the  author. 

8  289.     i  Co.  Litt.  53a. 

«  Davenport  v.  Davenport,  7  Hare,  222. 

»  Story,  Eq.  Jur.  $  919.  And  see  Watson  v.  Hunter,  5  Johns.  Ch. 
(N.  Y.)  170,  9  Am.  Dec.  295;  Wlnship  v.  Pitts,  3  Palpe  (N.  Y.)  259. 

4  Kane  v.  Vanderburgh,  1  Johns.  Ch.  (N.  Y.)  11;  Markham  v.  How- 
ell,  33  G  a.  508;  Griffin  v.  Sketol.  30  G  a.  300. 

8  Keller  v.  Ogsbury,  121  N.  Y.  3(52,  24  N.  E.  803;  Chapel  T.  Hull, 
60  Mich.  167,  26  N.  W.  874;  Clark's  Appeal,  G2  Pa.  447. 


§    289)  TO    PREVENT   TORTS.  583 

tion  will  be  granted  in  all  such  cases  where  it  is  shown  that 
the  defendant  in  an  action  at  law  would  be  unable  to  re- 
spond in  damages.6 

To  constitute  waste  it  is  necessary  that  the  wrongdoer  be 
in  actual  possession  of  the  premises ;  such  possession  con- 
stituting the  distinction  between  waste  and  trespass,  a  prin- 
cipal element  of  the  latter  being  a  wrong  done  to  one  in 
possession.7  It  was  formerly  held  that  equity  would  not 
restrain  waste  unless  there  was  unquestioned  evidence  of  the 
plaintiff's  title.8  But  in  more  recent  cases  it  has  been  the 
common  practice  to  issue  an  injunction  where  the  threat- 
ened waste  will  cause  material  and  irreparable  injury,  al- 
though the  title  to  the  premises  be  in  litigation.9  The  exist- 
ence of  a  doubt  as  to  the  title  does  not  of  itself  constitute  a 
sufficient  ground  for  refusing  an  injunction ; 10  but,  if  the 
plaintiff's  title  is  bad,  or  he  has  no  reasonable  ground  for 
asserting  such  title,  an  injunction  will  not  be  granted.11 

Although  the  acts  may  ultimately  lead  to  the  improvement 
of  the  land,  waste  may  be  restrained,  if  the  immediate  result 
is  injurious  to  the  premises; 12  and  any  material  alterations 
may  be  restrained,  notwithstanding  the  fact  that  the  value  of 
the  property  will  be  increased  thereby.13  The  relief  by  in- 
junction will  be  granted  to  prevent  threatened  waste  without 
waiting  for  its  actual  commission.14 

«  Kinsler  v.  Clarke,  2  Hill,  Eq.  (S.  C.)  617;  Erhardt  v.  Boaro,  113 
U.  S.  537,  5  Sup.  Ct.  565,  28  L.  Ed.  1116;  Cornelius  v.  Post,  9  N.  J. 
Eq.  196;  Tainter  v.  Mayor  of  Morristown,  19  N.  J.  Eq.  46. 

7  Cooley,  Torts,  232;  Denny  v.  Brunson,  29  Pa.  382.  But  see 
More  v.  Massini,  32  CaJ.  590,  where  it  was  held  that  an  injunction 
will  lie  to  restrain  a  threatened  injury  to  real  property  in  the  nature 
of  waste,  although  the  plaintiff  is  in  possession  of  the  land. 

»  Pillsworth  v.  Hopton,  6  Ves.  51;  Davis  v.  Leo,  Id.  784;  Nethery 
Y.  Payne,  71  Ga.  379;  Preston  v.  Smith  (C.  C.)  26  Fed.  884. 

»  Erhardt  v.  Boaro,  113  U.  S.  537,  5  Sup.  CL  565,  28  L.  Ed.  1116; 
Hunt  v.  Steese,  75  Cal.  621,  17  Pac.  920;  West  Point  Iron  Co.  v. 
Reyniert,  45  N.  ¥.  703;  Wilson  v.  City  of  Mineral  Point,  39  Wis.  160. 

10  Hunt  v.  Steese,  75  Cal.  620,  17  Pac.  920;  Snyder  v.  Hopkins,  31 
Kan.  559,  3  Pac.  367. 

11  Hunt  v.  Steese,  75  Cal.  620,  17  Pac.  920. 

12  Coppinger  v.  Gubbins,  9  Ir.  Eq.  304. 

i«  Douglass  v.  Wiggins,  1  Johns.  Ch.  (N.  Y.)  435;  Brock  v.  Dole, 
66  Wis.  145,  28  N.  W.  334. 

i*  Rodgers  v.  Rodgers,  11  Barb.  (N.  Y.)  595;  Livingston  v.  Reyn- 
olds, 26  Wend.  (N.  Y.)  123;  More  v.  Massini,  32  Cal.  590;  Sheridan 
V.  McMullen,  12  Or.  150,  U  Pac.  497. 


584  INJUNCTION.  (Ch.  22 

An  injunction  will  issue  in  favor  of  the  remainder-man  or 
reversioner  against  the  commission  of  any  acts  by  the  tenant 
for  life  or  for  years  amounting  to  legal  waste.15  A  mort- 
gagor, being  regarded  in  equity  as  the  owner  of  the  land, 
may  commit  waste,  and  an  injunction  will  not  issue  against 
him,  unless  it  appears  that  the  security  is  insufficient,  or  will 
be  made  so  by  the  act  complained  of.16  A  vendor  who  sells 
land  under  a  contract,  retaining  the  title  as  security  for  the 
purchase  money,  sustains  the  same  relative  position  in  re- 
spect to  the  property  sold  as  does  a  mortgagee  to  the  mort- 
gagor, and  he  may  restrain  the  commission  of  waste  by  the 
vendee,  ii  the  security  is  insufficient.17 

Not  only  will  equity  restrain  the  commission  of  legal  waste 
by  the  tenant  of  the  particular  estate,  but  it  will  also  restrain 
what  is  known  as  ''equitable  waste."  Thus,  where  the  estate 
of  a  tenant  for  life  or  for  years  is  declared  by  the  instrument 
creating  it  to  be  "without  impeachment  of  waste,"  courts  of 
law  will  never  interfere; 18  but  equity  will  control  him  in  the 
exercise  of  the  power,  on  the  ground  that  it  will  not  permit 
an  unconscientious  use  to  be  made  of  a  legal  power.18  In 
the  leading  case  (Lord  Bernard's  Case)  20  a  tenant  for  life 
without  impeachment  of  waste,  who  was  proceeding  to  pull 
down  the  mansion  house,  was  enjoined  at  the  suit  of  the  re- 
mainder-man. 

Trespass. 

The  ground  of  the  equitable  jurisdiction  to  prevent  tres- 
pass by  injunction  is  the  probability  of  irreparable  injury,  the 
inadequacy  of  the  legal  remedy,  and  the  prevention  of  a  mul- 

IB  Pulteney  v.  Shelton,  5  Ves.  147,  note;  Brock  v.  Dole,  66  Wis. 
142,  28  N.  W.  334;  Mutual  Life  Ins.  Co.  v.  Bigler,  79  N.  Y.  568; 
Watson  v.  Hunter,  5  Johns.  Ch.  (N.  Y.)  160,  9  Am.  Dec.  295;  Laven- 
son  v.  Soap  Co.,  80  Cal.  245,  22  Pac.  184,  13  Am.  St.  Rep.  147. 

i«  Moriarty  v.  Ash  worth,  43  Minn.  1,  44  N.  W.  531,  19  Am.  St.  Rep. 
203;  Harris  v.  Bannon,  78  Ky.  568;  Fairbank  v.  Cudworth,  33  Wis. 
858;  King  v.  Smith,  2  Hare,  244. 

"  Moses  v.  Johnson,  88  Ala,  517,  7  South.  146,  16  Am.  St  Rep. 
58;  Core  v.  Bell,  20  W.  Va.  169;  Van  Wyck  v.  Alliger,  6  Barb.  (N. 
Y.)  507. 

i«  Bowies'  Case,  11  Coke,  81b. 

«  Micklethwalt  v.  Micklethwait,  1  De  Gez  &  J.  504.  524;  Hawley 
T.  Clowes,  2  Johns.  Ch.  (N.  Y.)  122, 

«o  Finch,  Free.  454,  2  Vern.  738. 


§    289)  TO    PREVENT   TORTS.  585 

tiplicity  of  suits.*1  Formerly  courts  of  equity  hesitated,  even 
in  cases  of  repeated  trespass,  to  interfere  by  injunction.  But 
at  the  present  time  the  jurisdiction  is  freely  exercised  in  all 
cases  where  the  threatened  trespass,  if  committed,  would  be 
ruinous  or  irreparable  in  damages,  or  would  impair  the  just 
enjoyment  of  the  property  in  the  future.22  It  was  said  by 
Chancellor  Kent  that  the  common-law  remedy  by  action  and 
the  assessment  of  damages  by  a  jury  had  been  found  in  ordi- 
nary cases  "amply  sufficient  for  the  protection  of  property; 
and  I  do  not  think  it  advisable,  upon  any  principle  of  justice 
or  policy,  to  introduce  the  chancery  remedy  as  its  substitute, 
except  in  strong  and  aggravated  instances  of  trespass,  which 
go  to  the  destruction  of  the  inheritance,  or  where  the  mis- 
chief is  remediless."  23  This  statement  of  the  rule  is  opposed 
to  the  decisions  of  many  able  judges  of  the  present  day,  and 
injunctions  are  now  frequently  granted,  not  merely  because 
the  injury  is  essentially  destructive,  but  because,  being  con- 
tinuous or  repeated,  the  full  compensation  for  the  entire 
wrong  cannot  be  obtained  in  one  action  at  law  for  damages.24 
The  foundation  for  the  jurisdiction  at  the  present  time  may 
be  said  to  be  the  inadequacy  of  the  legal  remedy,28  either  (i) 
because  of  the  irreparable  nature  of  the  injury  caused  by  a 
single  act  of  trespass,28  or  (2)  because  of  the  necessity  for  a 

*i  Lembeck  v.  Nye,  47  Ohio  St.  330,  24  N.  E.  686,  8  L.  R.  A.  578,  21 
Am.  St.  Rep.  828;  Western  Union  Tel.  Co.  v.  Judkins,  75  Ala.  428; 
Poughkeepsie  Gas  Co.  v.  Gas  Co.,  89  N.  Y.  493;  Wheelock  v.  Noonan, 
108  N.  Y.  179,  15  N.  E.  67,  2  Am.  St  Rep.  405;  1  Keener,  Eq.  Cas. 
194;  Owens  v.  Crossett,  105  111.  356;  Poyer  v.  Village  of  Des  Plaines, 
123  111.  Ill,  13  N.  E.  819,  5  Am.  St  Rep.  494;  Smithers  v.  Fitch,  82 
Cal.  155,  22  Pac.  935. 

22  Spell.  Extr.  Relief,  §  337. 

»s  Jerome  v.  Ross,  7  Johns.  Ch.  (N.  Y.)  315,  11  Am.  Dec.  484. 

a*  Pom.  Eq.  Jur.  §  1357. 

«B  Silva  v.  Garcia,  65  Cal.  591,  4  Pac.  628;  Frink  v.  Stewart,  94 
N.  C.  484;  Smith  v.  City  of  Oconomowoc,  49  Wis.  694,  6  N.  W.  329; 
Mulry  v.  Norton,  100  N.  Y.  424,  3  N.  E.  581.  Fugitive  or  temporary 
trespass,  such  as  removal  of  fence,  will  not  be  enjoined.  Minnig's 
Appeal,  82  Pa.  373;  Jordan  v.  Lanier,  73  N.  C.  90. 

26  Removal  of  ore  from  mines  by  a  trespasser,  going  to  the  de- 
struction of  inheritance,  will  be  enjoined.  Anderson  v.  Harvey's 
Heirs,  10  Grat  (Va.)  386;  Cheesman  v.  Shreve  (C.  C.)  37  Fed.  36; 
Silva  v.  Rankin,  80  Ga.  79,  4  S.  E.  756;  West  Point  Iron  Co.  v.  Rey- 
mert,  45  N.  Y.  703;  Richards  v.  Dower,  64  Cal.  62,  28  Pac.  113;  Ham- 
mond v.  Winchester,  82  Ala.  470,  2  South.  892.  Cutting  timber  for 
which  land  is  chiefly  valuable  will  be  restrained,  Fulton  v.  Harman, 


586  INJUNCTION.  (Ch.  22 

multiplicity  of  suits,  caused  by  continuous  and  repeated  tres- 
passes.27 

The  pecuniary  irresponsibility  of  the  alleged  wrongdoer 
may  sometimes  be  the  ground  for  an  injunction  to  restrain 
a  trespass,  although  the  injury  might  not  otherwise  be  ir- 
reparable.28 And  the  court  will  not  stop  to  enter  into  nice 
calculations,  or  to  diligently  seek  a  standard  by  which  to 
measure  the  extent  of  probable  damages  to  result  from  the 
wrongful  act,  if  it  appears  that  an  action  at  law  to  recover 
such  damages  will  be  barred  of  beneficial  results,  because  of 
the  pecuniary  irresponsibility  of  the  defendants.29 

As  a  general  rule,  an  injunction  will  not  issue  unless  the 

44  Md.  251;  Thatcher  v.  Humble,  67  Ind.  444;  Powell  v.  Cheshire, 
70  Ga.  357;  and  so  will  interference  with  a  burial  ground,  Mooney 
v.  Cooledge,  30  Ark.  040.  An  attempt  to  enter  upon  and  take  pos- 
session of  land  for  public  use  without  the  assent  of  the  owner,  and 
without,  the  damages  having  been  ascertained  or  paid  or  tendered, 
is,  or  would  be  if  consummated,  In  the  nature  of  an  irreparable  in- 
Jury  for  the  prevention  of  whJch  injunction  is  the  proper  remedy. 
Uren  v.  Walsh,  57  Wis.  98,  14  N.  W.  902;  Church  v.  School  Dist,  55 
Wis.  399,  13  N.  W.  272. 

27  Mnsselinan  v.  Marquis,  1  Bush  (Ky.)  463,  89  Am.  Dec.  637; 
Lembeck  v.  Nye,  47  Ohio  St.  336,  24  N.  E.  686;  Warren  Mills  v. 
Seed  Co.,  65  Miss.  391,  4  South.  298,  7  Am.  St.  Rep.  663;  Wheelock 
v.  Noonan,  108  N.  Y.  179,  15  N.  E.  67,  1  Keener,  Eq.  Cas.  194;  Ladd 
v.  Osborne,  79  Iowa,  93,  44  N.  W.  235;  Wilson  v.  Hill,  46  N.  J.  Eq. 
369,  19  Atl.  1097;  Galway  v.  Railroad  Co.,  128  N.  Y.  132,  28  N.  E.  479. 
13  L.  R.  A.  788;  Port  of  Mobile  v.  Railroad  Co.,  84  Ala.  115,  4  South. 
100.  o  Am.  St.  Rep.  342.  Some  of  the  cases  hold  that  there  must  be 
several  persons  controverting  the  same  right,  and  each  standing  on 
his  own  claim  or  pretension.  John  A.  Roebling  Sons'  Co.  v.  Bank 
(D.  C.)  30  Fed.  744;  Carney  v.  Hadley,  32  Fla.  344,  14  South.  4,  7, 
L'2  L.  R.  A.  233,  37  Am.  St.  Rep.  101;  Thorn  v.  Sweeney,  12  Nev. 
251;  Nicodemus  v.  Nicodemus,  41  Md.  529.  Repeated  trespasses  do 
not  warrant  an  Injunction  If  a  number  of  suits  are  not  necessary 
to  put  an  end  to  them.  For  example,  an  intruder  into  plaJntiff's 
factory,  under  a  claim  of  right  so  to  do,  may  be  ejected  by  force, 
and  hence  injunction  will  be  denied.  Mechanics'  Foundry  v.  Ryall, 
75  Cal.  601,  17  Pac.  703. 

"Thornton  v.  Roll,  118  111.  350,  8  N.  E.  145;  Hicks  v.  Compton, 
18  Cal.  206:  Piper  v.  Piper,  38  N.  J.  Eq.  81;  West  v.  Smith,  52  Cal. 
822;  Dunkart  v.  Rinehart,  87  N.  C.  224;  Mulry  v.  Norton,  100  N.  Y. 
424,  428,  3  N.  E.  581;  Watson  v.  Sutherland,  5  Wall.  74,  18  L.  Ed. 
580. 

2«  Real  Del  Monte  Co.  v.  Mining  Co.,  23  Cal.  82;  Sullivan  v.  Rabb, 
86  Ala.  433,  5  South.  746;  Hicks  v.  Compton,  18  Cal  206, 


§    289)  TO    PREVENT    TORTS.  587 

plaintiff's  title  to  the  premises  in  dispute  is  clear.80  It  is  al- 
ways an  absolute  bar  to  the  allowance  of  an  injunction  for 
the  protection  of  property  during  the  litigation  that  the  de- 
fendant shows  that  the  party  seeking  the  injunction  has  no 
title  or  interest  in  the  property,  and  no  claim  to  the  ultimate 
relief  sought  by  the  litigation.31  And  it  has  been  held  that 
the  plaintiff  must  not  only  show  himself  entitled  to  the  pos- 
session, but  also  that  he  is  actually  in  possession.32  But  this 
rule  has  its  exceptions,  and  is  of  little  importance  under  the 
modern  system  of  trying  equity  cases.38 

Nuisance. 

A  nuisance,  as  distinguished  from  a  trespass,  is  an  act  not 
in  itself  an  invasion  of  property,  which  causes  a  substantial 
injury  to  the  corporeal  and  incorporeal  hereditaments  of  oth- 
er persons.  In  the  case  of  trespass  it  is  the  immediate  act 
which  causes  the  injury,  while  in  the  case  of  nuisance  the  in- 
jury is  the  consequence  of  an  act  done  beyond  the  bounds 
of  the  property  affected  by  it.84  A  nuisance  may  be  either 
of  a  private  or  a  public  nature.  The  distinction  between  the 
two  is  that  a  private  nuisance  is  an  injury  to  the  property  of 
an  individual,  while  a  public  nuisance  is  an  injury  to  the  prop- 
erty of  all  persons  who  come  within  the  sphere  of  its  opera- 
tion.35 

A  public  nuisance  may  be  enjoined  by  an  injunction  at  the 
suit,  in  England,  of  the  attorney  general,  and  in  this  country 
at  the  suit  of  the  state,  the  people,  a  municipality,  or  some 
officer  representing  either  of  them.36  A  private  individual 

so  Harper  v.  McElroy,  42  N.  J.  Eq.  280,  10  Atl.  879;  Bates  v.  Slade, 
76  Ga,  50;  Eskridge  v.  Eskridge,  51  Miss.  522. 

31  State  v.  McGlynn,  20  Cal.  233;  81  Am.  Dec.  118;  Wearin  v. 
Munson,~62  Iowa,  4G6,  17  N.  W.  746. 

az  Hillman  v.  Hurley,  82  Ky.  626;  Spofford  v.  Railroad  Co.,  66 
Me.  51. 

38  Wheelock  v.  Noonan,  108  N.  Y.  179,  186,  15  N.  E.  67,  1  Keener, 
Eq.  Cas.  194. 

34  Kerr,  InJ.  106;  High,  Inj.  §  739. 

8»  Attorney  General  v.  Gas  Consumers'  Co.,  3  De  Gex,  M.  &  G. 
320,  1  Keener,  Eq.  Cas.  682:  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  142,  1 
Keener,  Eq.  Cas.  665;  Lansing  v.  Smith,  8  Cow.  (N.  Y.)  146. 

36  Attorney  General  v.  Cleaver,  18  Ves.  211;  Attorney  General  v. 
Steward.  21  N.  J.  Eq.  340.  The  remedy  by  injunction  at  the  suit  of 
the  people  is  chiefly  applied  to  that  form  of  public  nuisances  known 
as  "purprestures";  i.  e.  encroachments  on  highways,  streets,  and 


588  INJUJJCTION.  (Ch.  22 

cannot  enjoin  a  public  nuisance,  unless  he  sustains  some  spe- 
cial, direct,  and  substantial  damage  thereby,  distinct  from 
that  suffered  by  him  in  common  with  the  public  at  large.87 

It  is  sometimes  difficult  to  draw  a  clear  distinction  between 
a  public  and  private  nuisance.  Lord  Justice  Turner  said: 
"The  only  distinction  which  seems  to  exist  between  cases  of 
public  nuisance  and  private  nuisance  is  this :  that  in  cases  of 
private  nuisance  the  injury  is  to  individual  property,  and  in 
cases  of  public  nuisance  the  injury  is  to  the  property  of 
mankind."  "  Whether  the  nuisance  be  public  or  private,  the 
principles  upon  which  the  relief  is  administered  are  the  same. 
There  are  offenses  and  occupations  which  are  usually  con- 
sidered to  be  essentially  injurious  to  health  and  comfort,  or 
dangerous  to  life,  and  will  be  enjoined  upon  slight  evidence 
of  special  injury,  and  in  some  cases  upon  no  other  evidence 
than  that  they  exist,  and  that  persons  reside  in  their  vicini- 
ty.*9 Slaughter  houses,  for  instance,  which  have  long  been 
regarded  as  prima  facie  nuisances,  may  be  enjoined  by  per- 
sons living  in  their  vicinity.*0 

Private  Nuisances. 

In  restraining  a  private  nuisance  by  injunction,  a  court  of 
equity  may  act  from  one  or  more  of  three  motives, — the  re- 
straint of  irreparable  mischief,  the  suppression  of  oppressive 

navigable  waters.  People  v.  Vanderbilt,  28  N.  Y.  396;  People  v. 
Ferry  Co.,  68  N.  Y.  71;  Attorney  General  v.  Woods,  108  Mass.  430; 
Pennsylvania  v.  Bridge  Co.,  13  How.  518,  14  L.  Ed.  249.  Inclosure 
of  public  domain  by  private  persons  enjoined  as  purpresture.  U.  S. 
v.  Ranche  Co.  (C.  C.)  26  Fed.  218;  State  v.  Goodnight,  70  Tex.  686. 
11  S.  W.  119. 

ST  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  141,  1  Keener,  Eq.  Gas.  665; 
Cranford  v.  Tyrrell,  128  N.  Y.  341,  28  N.  E.  514,  1  Keener,  Eq.  Oas. 
788;  Callanan  v.  Gilnian,  107  N.  Y.  360,  14  N.  E.  264.  1  Keener,  Eq. 
CHS.  TG5;  Pearson  v.  Allen,  151  Mass.  79,  23  N.  E.  731;  Van  Wegenen 
v.  Cooney,  45  N.  J.  Eq.  24,  16  Atl.  689;  Cuminings  v.  City  of  St. 
Louis,  90  Mo.  259,  2  S.  W.  130;  Hargro  v.  Hodgdon,  89  Cal.  623,  26 
Pac.  1106. 

»«  Attorney  General  v.  Gas  Consumers'  Co.,  3  De  Gex,  M.  &  G. 
804.  319.  1  Keener,  Eq.  Cas.  682. 

»»  Qulnn  v.  Light  Corp.,  140  Mass.  106,  3  N.  E.  200;  Rogers  v.  El- 
liott, 146  Maaa.  349,  15  N.  E.  768;  Cook  v.  Anderson,  85  Ala.  99,  4 
South.  713. 

«°  Brady  v.  Weeks,  3  Barb.  (N.  Y.)  157;  Dubois  v.  Budlong,  15 
Abb.  Prac.  (N.  Y.)  445;  Pruner  Y.  Pendleton,  75  Va.  516,  40  Am.  Rep. 


§    289)  TO    PREVENT   TORTS.  589 

and  interminable  litigation,  or  the  prevention  of  a  multiplici- 
ty of  suits.41  If  the  case  made  out  is  such  that  the  recovery 
of  damages  will  give  a  full  and  adequate  compensation  for 
the  injury,  no  foundation  is  laid  for  the  interference  of  the 
court  by  way  of  injunction.  But  if  the  threatened  or  present 
injury  is  material  and  real,  and  cannot  be  compensated  by 
the  recovery  of  damages,  or  is  such  that  its  continuance  will 
occasion  a  constantly  recurring  grievance,  an  injunction 
should  be  granted.4*  If  it  be  necessary  to  prevent  a  perma- 
nent injury  to  property,  or  its  entire  ruin,  from  the  erection 
and  continuance  of  a  nuisance,  and  the  law  cannot  prevent 
the  evil,  equity  will  interfere,  although  the  property  itself 
may  be  of  small  value.48 

Same — Injury  to  Dwellings  and  Places  of  Business. 

To  authorize  the  issuance  of  an  injunction,  there  must  be 
such  a  degree  of  injury  to  the  property  as  interferes  material- 
ly with  its  comfortable  enjoyment,  either  for  domestic  or 
business  purposes.  The  standard  by  which  to  determine  the 
amount  of  damages  that  calls  for  the  exercise  of  the  equita- 
ble jurisdiction  is  the  comfort  and  enjoyment  in  their  abode 
to  which  the  inmates  are  reasonably  entitled,44  and  this  must 
be  estimated  according  to  the  plain  and  simple  notions  enter- 
tained by  persons  in  ordinary  life,  and  not  according  to  those 
held  by  persons  accustomed  to  extravagant  habits  of  living.45 

The  enjoyment  of  pure  and  wholesome  air  is  a  right  to 
which  the  owners  of  land  and  the  inmates  of  dwelling-  houses 
are  of  common  right  entitled.  Any  act  which  pollutes  or 
corrupts  the  air  is,  strictly  speaking,  a  nuisance,4'  but,  inas- 

41  Spell.  Extr.  Relief,  §  377. 

42  Kerr,  Inj.  p.  166;    Gardner  v.  Newburgh,  2  Johns.  Ch.  (N.  Y.) 
162,  7  Am.  Dec.  526, 1  Keener,  Eq.  Cas.  654;  McCord  v.  Iker,  12  Ohio, 
388,  1  Keener,  Eq.  Cas.  659;  Sellers  v.  Parvis  &  Williams  Co.  (C.  C.) 
30  Fed.  164;  Rouse  v.  Flowers,  75  Ala.  513,  51  Am.  Rep.  463;   Mow- 
day  v.  Moore,  133  Pa,  611,  19  Atl.  626;   Carlisle  v.  Cooper,  21  N.  J. 
Eq.  576. 

43  McCord  v.  Iker,  12  Ohio,  388,  1  Keener,  Eq.  Cas.  659. 

44  Jackson  v.  Duke  of  Newcastle,  3  De  Gex,  J.  &  S.  284;  Fleming 
V.  Hislop,  11  App.  Cas.  691. 

46  Kerr,  Inj.  p.  192;  Walter  v.  Selfe,  4  De  Gex  &  S.  322;  Cooper 
v.  Crabtree,  20  Ch.  Div.  589;  Powell  v.  Furniture  Co.,  34  W.  Va.  804. 
12  S.  E.  1085,  12  L.  R.  A.  53;  Dittman  v.  Repp,  50  Md.  516;  West- 
cott  v.  Middleton,  43  N.  J.  Eq.  478,  11  Atl.  490. 

4«  Aldred's  Case,  9  Coke,  58b. 


590  INJUNCTION.  (Ch.  22 

much  as  the  business  of  life  in  cities  and  populous  neighbor- 
hoods renders  it  impossible  that  the  air  should  retain  its  nat- 
ural state  of  purity,  the  law  does  not  regard  trifling  incon- 
veniences, but  only  regards  inconveniences  which  sensibly 
and  materially  diminish  the  comfortable  enjoyment  or  the 
value  of  the  property.47  It  is  not  necessary,  however,  that 
impurities  in  the  air  should  be  injurious  to  health,  but  it 
is  sufficient  if  they  cause  discomfort  and  annoyance  to 
persons  of  ordinary  sensibilities.48  And  if  real  damage  or 
great  inconvenience  is  occasioned  by  the  carrying  on  of 
a  noisy  trade,  or  by  otherwise  causing  excessive  noise  or 
vibration,  an  injunction  may  be  obtained  to  prevent  its 
continuance.49  The  mere  fact  of  a  business  being  car- 
ried on,  which  may  be  shown  to  be  immoral,  and  there- 
fore prejudicial  to  the  character  of  the  neighborhood,  fur- 
nishes of  itself  no  ground  for  equitable  interference  at  the 
suit  of  a  private  person;  and,  though  the  use  of  property 
may  be  unlawful  or  unreasonable,  unless  special  damage 
can  be  shown,  a  neighboring  property  owner  cannot  base 
thereupon  any  private  right  of  action.60  If  the  use  of  a 

«T  Kerr,  InJ.  p.  211;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L. 
Cas.  <>12;  Sellers  v.  Board,  14  Q.  B.  Div.  928;  Duncan  v.  Hayes,  22 
N.  J.  Eq.  20;  Rhodes  v.  Dunbar,  57  Pa.  274. 

«s  Meigs  v.  Lister,  23  N.  J.  Eq.  199;  Babcock  v.  Stock-Yard  Co., 
20  N.  J.  Kq.  296.  The  following  are  examples  of  nuisances  causing 
impurities  in  the  air  which  have  been  enjoined.  Erection  of  slaugh- 
terhouse, Bushnell  v.  Robeson,  62  Iowa,  540,  17  N.  W.  888;  Reichert 
v.  Goers.  98  Ind.  73;  rendering  and  fertilizing  establishments,  Evans 
v.  Fertilizing  Co.,  160  Pa.  209,  28  Atl.  702;  City  of  Grand  Rapids  v. 
Wekleii,  97  Mich.  82,  56  N.  W.  233;  Peck  v.  Elder,  3  Sandf.  (X.  Y.) 
3 lid:  soot,  smoke,  and  noxious  gases,  Sullivan  v.  Royer,  72  Gal.  248, 
13  Pat-.  (;.*>,  1  Am.  St  Rep.  51;  Campbell  v.  Seaman,  63  N.  Y.  568.  20 
Am.  Rep.  5(57;  Cogswell  v.  Railroad  Co.,  103  N.  Y.  10,  8  N.  E.  537; 
English  v.  Motor  Co.,  95  Ala.  239,  10  South.  134,  1  Keener,  Eq.  Cas. 
790. 

*°  Vibrations  caused  by  machinery,  Dittman  v.  Repp,  50  Md.  516, 
83  Am.  Rep.  325;  Hennessey  v.  Oarmony,  50  N.  J.  Eq.  616,  25  Atl. 
374.  1  Keener,  Eq.  Cas.  806;  Demarest  v.  Hardham,  34  N.  J.  Eq. 
469;  but  not  if  located  in  manufacturing  district,  Straus  v.  Barnett, 
140  Pa,  111,  21  Atl.  253;  skating  rink  near  dwelling  house,  Snyder 
v.  Cabell,  29  W.  Va.  48,  1  S.  E.  241;  ringing  bells,  Soltau  v.  De 
Hold,  2  Sim.  (N.  S.)  133,  1  Keener,  Eq.  Cas.  665;  Davis  v.  Sawyer, 
133  Mass.  289;  keeping  horses  in  stable  near  dwelling  house,  Ball 
T.  Kay,  8  Ch.  App.  467. 

BO  Cranford  v.  Tyrrell,  328  N.  Y.  341,  28  N.  EX  514,  1  Keener,  Eq. 
Cas.  788. 


§    289)  TO    PREVENT   TORTS.  591 

property  is  one  which  renders  a  neighbor's  occupation  and 
enjoyment  physically  uncomfortable,  or  which  may  be  hurt- 
ful to  the  health, — as  where  trades  are  conducted  which  are 
offensive  by  reason  of  odors,  noises,  or  other  injurious  or 
annoying  features, — a  private  nuisance  is  deemed  to  be  es- 
tablished, against  which  the  power  of  a  court  of  equity 
may  be  invoked.  Accordingly,  it  was  held  that  an  action 
would  lie  to  restrain  a  defendant  from  keeping  a  house  of 
ill  fame,  and  from  using  his  premises  as  an  assignation 
house,  since  the  indecent  conduct  of  the  occupants  of  the 
defendant's  house,  and  the  noise  therefrom,  rendered  the 
plaintiff's  house  unfit  for  comfortable  or  respectable  oc- 
cupation, and  for  the  purposes  for  which  it  was  intended.61 
In  regard  to  the  inconveniences  caused  by  noises  re- 
sulting from  the  conduct  of  a  lawful  business,  it  may  be 
said,  as  in  the  case  of  inconveniences  arising  from  impuri- 
ties in  the  air,  caused  by  smoke  and  noxious  gases,  that  "a 
person  who  resides  in  a  large  city  must  not  expect  to  be 
surrounded  by  the  stillness  that  prevails  in  rural  districts. 
He  must  necessarily  hear  some  of  the  noise,  and  occasion- 
ally feel  slight  vibrations,  produced  by  the  movements  and 
labor  of  its  people,  and  by  the  hum  of  its  mechanical  in- 
dustries. The  aid  of  a  court  may  be  invoked  to  keep  an- 
noying sounds  within  reasonable  limits.  Every  noise,  how- 
ever, is  not  a  nuisance,  nor,  when  produced  in  the  exercise 
of  a  lawful  occupation,  should  the  strong  arm  of  a  chancel- 
lor be  extended  to  suppress  it."  "  Whether  or  not  the  pow- 
er of  the  court  should  be  exercised  under  such  circumstan- 
ces must  be  determined  in  view  of  the  relative  rights  of  the 
parties  and  the  public  welfare.68  No  distinction  will  be  made 
between  a  locality  occupied  by  tradesmen  and  mechanics 
for  residences  and  one  which  contains  elegant  and  costly 
dwellings,  and  is  inhabited  by  the  wealthy  and  luxurious. 
Some  parts  of  a  town  may,  by  lapse  of  time,  or  prescription, 
as  by  the  continuance  therein  of  a  large  number  of  factories 
for  a  long  time,  be  so  dedicated  to  smells,  smoke,  noise, 

BI  Cranford  v.  Tyrrell,  128  N.  Y.  341,  28  N.  E.  514,  1  Keener,  Eq. 
Cas.  7SS. 

62  McCaffrey's  Appeal,  105  Pa.  253;  Louisville  Coffin  Go.  v.  War- 
ren, 78  Ky.  400;  English  v.  Motor  Co.,  95  Ala.  239,  10  South.  134,  1 
Keeuer,  Eq.  Cas.  790,  795. 

•«  Gilbert  v.  Showerman,  23  Mich.  448. 


592  INJUNCTION.  (Ch.  22 

and  dust  that  an  additional  factory,  which  adds  a  little  to 
the  common  evil,  would  not  be  considered,  at  law,  a  nui- 
sance, or  be  restrained  in  equity.  But  no  equitable  prin- 
ciple can  be  cited  which  would  give  protection  to  the  many 
comforts  and  enjoyments  with  which  the  wealthy  and  lux- 
urious are  surrounded,  and  fail  to  secure  to  the  artisan 
and  laborer  and  their  families  the  fewer  and  more  restricted 
comforts  which  they  enjoy.6* 

Same — Lateral  Support. 

Courts  of  equity  will  prevent  by  injunction  adjoining  land- 
owners from  digging  in  the  soil  of  their  own  land  so  as  to 
endanger  their  neighbor's  buildings.  The  jurisdiction  rests 
upon  the  right  of  a  landowner  to  the  subjacent  and  lateral 
support  of  his  land  in  its  natural  state.06  The  right  is  not 
in  the  nature  of  an  easement,  but,  like  the  right  to  the  flow 
of  a  natural  stream,  or  of  air,  is  an  incident  to  the  right 
of  the  ordinary  enjoyment  of  property.66  The  right  to  the 
support  of  a  building  or  other  artificial  weight  is  of  a  dif- 
ferent nature.  This  is  not  a  natural  right  of  property,  but 
is  an  easement  which  can  be  acquired  only  by  grant,  or  by 
prescription,  which  presupposes  a  grant.67 

Riparian  and  Water  Rights. 

Water  wholly  on  one's  land  is  an  inseparable  part  of  the 
realty,  and  is  owned  and  held  by  the  owner  of  the  soil 
as  such,  and  the  same  is  true  of  surface  waters ;  but  the 
owner  of  the  soil  has  only  an  easement  in  the  waters  of  a 
stream  which  has  a  well-defined  channel,  and  flows  per- 
ennially or  for  considerable  seasons,  and  is  entitled  to  the 

•«  Ross  v.  Butler,  19  N.  J.  Eq.  294,  1  Keener,  Eq.  Gas.  800. 

BB  Trowbridge  v.  True,  52  Conn.  190,  52  Am.  Rep.  579.  But  It  has 
been  held  that  a  man  may  dig  so  near  his  neighbor's  land  as  to 
unsettle  his  foundations  and  precipitate  his  soil,  provided  he  uses 
ordinary  care;  and  that  no  person  has  a  right  to  lateral  support. 
Umldiffe's  Ex'rs  v.  Mayor,  etc.,  4  N.  Y.  195,  53  Am.  Dec.  357;  Pan- 
ton  v.  Holland,  17  Johns.  (N.  Y.)  92,  8  Am.  Dec.  369,  and  cases  cited. 

»«  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  512;  Dalton  v.  Angus,  6 
App.  Cas.  809. 

"  Hunt  v.  Peake,  Johns.  Eng.  Ch.  710;  Tunstall  r.  Christian,  80 
Va.  1,  50  Am.  Rep.  581;  City  of  Qulncy  v.  Jones,  76  HI.  281,  20  Am. 
Rep.  243;  Charless  v.  Rankln,  22  Mo.  566,  66  Am.  Dec.  642; 
Northern  Transportation  Co.  v.  City  of  Chicago,  99  U.  S.  635,  25  I* 
Ed.  330;  Ryckman  v.  Glllls,  57  N.  Y.  68,  15  Am.  Rep.  464. 


§   289)  TO    PREVENT   TORTS.  593 

reasonable  use  of  such  waters,  not  to  be  exercised,  how- 
ever, to  the  prejudice  or  total  deprivation  of  other  riparian 
owners.  What  constitutes  a  reasonable  use  is  a  question  of 
fact  depending  upon  the  circumstances  appearing  in  each 
particular  case.58 

All  acts  done  by  a  man  on  his  own  land,  whereby  the 
rights  of  his  neighbor  to  the  use  of  waters  are  injuriously 
affected,  or  whereby  water  becomes  the  cause  of  damage  to 
the  land  of  his  neighbor,  are  considered  as  nuisances  relat- 
ing to  water.09  Each  owner  may  use  the  water  of  a 
stream  running  through  or  by  his  land  for  all  reasonable 
purposes;  but  after  its  use  he  must  return  it,  without  sub- 
stantial diminution  or  change  in  quality,  to  its  natural  bed 
or  channel,  before  it  leaves  his  own  land,  so  that  it  will 
reach  his  adjacent  owner  in  its  full,  original,  and  natural 
condition.60  He  may,  therefore,  be  restrained  from  divert- 
ing the  stream,  or  materially  diminishing  the  quantity  which 
would  naturally  flow  to  his  neighbors  below; 81  or,  on  the 

o«Heilbron  v.  Water  Co.,  80  Cal.  189,  22  Pac.  62;  Stanford  v. 
Felt,  71  Cal.  249,  16  Pac.  900;  Alta  Land  &  Water  Co.  v.  Hancock, 
85  Cal.  219,  24  Pac.  645,  20  Am.  St  Rep.  217. 

e»  Kerr,  Inj.  p.  236;  Bollard  v.  Tomlinson,  29  Oh.  Div.  115. 

•opom.  Water  Rights,  §  4;  Heath  v.  Williams,  25  Me.  209,  63 
Am.  Dec.  205;  Tyler  v.  Wilkinson,  4  Mason,  397,  Fed.  Cas.  No.  14,- 
312;  Pugh  v.  Wheeler,  19  N.  C.  55.  Owing  to  necessities  of  mining, 
a  departure  was  made  in  California  and  other  Pacific  states;  and 
the  doctrine  is  there  settled,  in  opposition  to  the  common  law,  that  a 
permanent  right  of  property  in  the  water  of  streams  and  inland 
lakes  may  be  acquired  by  a  mere  prior  appropriation;  that  a  prior 
appropriator  may  thus  acquire  the  right  to  divert,  use,  and  consume 
a  quantity  of  water,  from  the  natural  flow  or  condition  of  such 
streams  or  lakes,  which  may  be  necessary  for  his  mining  operations; 
and  that  he,  becomes,  so  far  as  he  has  thus  made  an  actual  prior  ap- 
propriation, the  owner  of  the  water  as  against  all  the  world.  This 
doctrine,  applied  at  first  to  the  operation  of  mining,  has  been  ex- 
tended to  all  other  beneficial  purposes  for  which  water  may  be  es- 
sential,— to  milling,  manufacturing,  and  municipal  purposes.  Pom. 
Water  Rights,  §  15. 

«»  Ferrand  v.  Corporation  of  Bradford,  21  Beav.  412;  Wright  v. 
Moore,  38  Ala,  593,  82  Am.  Dec.  731;  Morrlll  v.  Water-Power  Co., 
26  Minn.  222,  2  N.  W.  842,  37  Am.  Rep.  399;  Lawson  v.  Wooden- 
Ware  Co.,  59  Wis.  393,  18  N.  W.  440;  Gardner  r.  Newburgh,  2  Johns. 
Ch.  (N.  Y.)  162;  Burden  v.  Stein,  27  Ala.  104,  62  Am.  Dec.  758.  S<x 
also,  an  upper  riparian  owner  will  be  enjoined  from  changing  the 
course  of  a  stream  so  as  to  materially  increase  its  current,  to  the 

EATOH.EQ.— 33 


594  INJUNCTION.  (Ch.  22 

other  hand,  from  damming  back  the  stream,  so  as  to  cause 
an  overflow  on  the  land  of  his  neighbor  above  him.62  A 
riparian  owner  has  also  the  right  to  the  flow  of  the  stream 
in  its  natural  state  of  purity,  and,  where  the  violation  of 
the  right  is  continuous,  he  may  restrain  the  fouling  of  the 
water  without  proof  of  actual  injury." 

Same — Other  Cases. 

It  is  not  possible  within  the  scope  of  this  chapter  to  men- 
tion in  detail  all  the  cases  or  classes  of  cases  of  nuisance  in 
which  the  remedy  by  injunction  may  be  had.  The  prin- 
ciples relating  to  nuisances  arising  from  the  obstruction  of 
public  highways  and  private  rights  of  way,  of  navigable 
water  by  bridges,  and  of  easements  of  light  and  air,  are  too 
numerous  to  be  specified  in  a  work  of  this  nature.  Before 
dismissing  this  subject,  however,  it  should  be  noted  that 
a  series  of  recent  decisions  has  established  the  principle  that 
the  owner  of  a  lot  abutting  on  a  public  street  in  a  city  has, 
as  appurtenant  to  the  lot,  and  independent  of  the  ownership 
of  the  fee  in  the  street,  an  easement  in  the  street  to  its  full 
width,  in  front  of  his  lot,  for  the  purposes  of  access,  light, 
and  air,  which  constitute  property,  and  which  cannot  be 
taken  from  him  for  public  use  without  compensation;  and 
therefore  he  may  enjoin  the  construction  and  operation  of 
an  elevated  railroad  in  the  street,  though  authorized  by  the 
proper  authorities,  unless  compensation  is  made  for  the  tak- 
ing." 

detriment  of  a  lower  proprietor.  Kay  v.  Kirk,  76  Md.  41,  24  Atl. 
820,  35  Am.  St.  Rep.  408. 

02  Bernls  v.  Upbam,  13  Pick.  (Mass.)  169;  Stone  v.  Lumber  Co., 
59  Mich.  24.  26  N.  W.  216;  Learned  v.  Hunt,  63  Miss.  373;  Minor  v. 
De  Vaughn,  72  Ga,  208;  McCorinlck  v.  Horan,  81  N.  Y.  86,  37  Am. 
Rep.  479.  Statute*  In  many  of  the  states  provide  for  the  condemna- 
tion of  land  to  be  overflowed  by  the  erection  of  milldama. 

«a  Merrifield  v.  Lombard,  13  Allen  (Mass.)  16,  90  Am.  Dec.  172; 
Holsman  v.  Bleaching  Co.,  14  N.  J.  Eq.  335;  Mayor,  etc.,  of  Balti- 
more v.  Manufacturing  Co.,  59  Md.  96,  110;  Richmond  Mfg.  Oa  v. 
De  Laine  Co.,  10  R.  L  106,  14  Am.  Rep.  668;  .Indianapolis  Water 
Co  v.  Strawboard  Co.  (C,  C.)  57  Fed.  1000;  Satterfleld  v.  Rowan.  83 
Ga,  187,  9  S.  E.  677.  Against  deposit  of  sewage,  Village  of  Dwi^ht 
v.  Hayes,  150  111.  273,  37  N.  E.  218;  Attorney  General  v.  Leeds  Corp., 
6  Oh.  App.  583;  Oldaker  v.  Hunt,  6  De  Gex,  M.  &  G.  376. 

•«  Story  v.  Railroad  Co.,  90  N.  Y.  122t  43  Am.  Rep.  146;  Lahr  v. 
Railway  Co.,  lOi  N.  Y.  268,  10  N.  E.  528.  The  New  York  court  of 


§    290)  TO    PRKVKNT    TOUTS.  505 

SAME— PKOTECTION     OF     PATENTS,    COPYEIGHTS, 
AND  TRADE-MARKS. 

290.  A  court  of  equity  will  restrain  by  an  injunc- 
tion an  infringement  of  a  patent  or  a  copy- 
right, or  the  -wrongful  use  of  a  trade-mark. 
The  jurisdiction  is  based  upon  the  necessary 
inadequacy  of  the  legal  remedy. 

Patents  and  copyrights  are  in  themselves  fully  recognized 
at  law,  and  an  action  at  law  for  damages  could  always  be 
maintained  for  their  infringement.1  But  it  is  evident  that 
such  a  remedy  supplied  an  exceedingly  inadequate  protection. 
Not  only  might  the  patentee  or  author  be  compelled  to  bring 
innumerable  actions,  and  thus  be  ruined  by  interminable  liti- 
gation, but  in  many  cases  damages,  even  if  recovered,  would 
afford  an  insufficient  redress  for  the  injury  sustained.  The 
business  or  the  reputation  might  be  impaired  by  the  interfer- 
ence, pending  the  litigation,  in  a  manner  and  to  an  extent 
which  no  inquiry  could  ascertain.2  And,  further,  the  facility 
for  taking  accounts  afforded  by  equity,  and  yet  more  con- 
spicuously its  power  of  peremptorily  stopping  the  infringe- 
ment by  injunction,  plainly  indicate  the  appropriateness  of 
the  jurisdiction  of  equity  for  dealing  with  such  matters.8 

Jurisdiction  of  Federal  Courts. 

The  federal  constitution  vests  in  congress  the  exclusive 
power  of  granting  patents  and  copyrights.  By  federal  stat- 
ute the  jurisdiction  of  equity  to  protect  these  rights  is  vested 

i 

appeals  has  refused  to  apply  this  principle  to  the  case  of  an  ordi- 
nary "surface"  railroad,  Fobes  v.  Railroad  Co.,  121  N.  Y.  505,  24  N. 
E.  919,  8  L.  R.  A.  453;  but  It  has  been  so  applied  by  the  supreme 
court  of  Minnesota,  Adams  v.  Railroad  Co.,  39  Minn.  286.  39  N.  W. 
62!),  1  L.  R.  A.  493,  12  Am.  St.  Rep.  644;  Lamm  v.  Railway  Co.,  45 
Minn.  71,  47  N.  W.  455,  10  L.  R.  A.  268. 

§  290.  i  Walk.  Pat.  §  418;  Stein  v.  Goddard,  1  Me  All.  82,  Fed. 
Cas.  No.  13,353;  Byam  v.  Bullard,  1  Curt.  100,  Fed.  Oas.  No.  2,2(>2. 

2  Smith,  Eq.  p.  730;  Hogg  v.  Kirby,  8  Ves.  223;  Story,  Eq.  Jur.  | 
OSO. 

s  Smith,  Eq.  p.  730;  Root  v.  Railway  Co.,  105  U.  S.  189,  26  L,  Ed,. 
875. 


696  INJUNCTION.  (Ch.  22 

exclusively  in  the  federal  courts.*  Under  the  act  of  congress 
of  1819  some  doubt  was  expressed  as  to  whether  the  juris- 
diction in  patent  cases  which  it  conferred  was  exclusive  of 
the  state  courts,8  but  all  doubt  was  removed  by  the  act  of 
1836."  While  state  courts  may  pass  upon  contracts  relat- 
ing to  patents  and  their  validity,  there  is  no  jurisdiction  vest- 
ed in  them  to  adjudicate  and  determine  questions  arising  as 
to  infringements.7 

"When  Injunction  will  be  Granted. 

There  is  no  practical  difference  between  the  rules  gov- 
erning the  courts  in  patent  cases  and  those  involving  copy- 
rights, as  far  as  concern  the  time  when  and  the  condi- 
tions under  which  the  injunction  will  be  granted.8  To 
warrant  the  issue  of  a  preliminary  injunction,  plaintiff  must 
show  both  a  prima  facie  title  to  the  patent  and  a  prima  facie 
case  of  infringement.8  If  the  validity  of  the  plaintiff's  patent 
was  denied,  a  trial  at  law  was  required  by  the  earlier  Eng- 
lish decisions,  unless  the  plaintiff  had  been  in  the  exclusive 
enjoyment  for  so  long  a  period  as  to  give  rise  to  a  presump- 
tion of  exclusive  right.10  The  federal  courts,  however,  sit- 
ting in  equity,  hear  the  cause  on  the  merits,  and  decide  the 
question  of  validity  and  infringement,  without  any  trial  at 
law,11  though  they  may,  in  their  discretion,  submit  issues  to 
a  jury.11 

«As  to  patents,  Rev.  St.  U.  S.  1874,  §  4921;  as  to  copyrights.  Id. 
{§  629.  4970.  And  see  Dudley  v.  Mayhew,  3  N.  Y.  9;  Slemmer's  Ap- 
peal, 58  Pa.  155;  Parkhurst  v.  Kinsman,  6  N.  J.  Eq.  600;  GaJnes  v. 
Fuentes,  92  U.  8.  17,  23  L.  Ed.  524. 

•  Burrall  r.  Jewett,  2  Paige  (N.  Y.)  134. 

«  Gibson  v.  Woodwoith,  8  Paige  (N.  Y.)  132;  Parkhurst  v.  Kins 
man,  6  N.  J.  Eq.  600. 

i  Continental  Store-Service  Co.  v.  Clark,  100  N.  Y.  305,  3  N.  E.  335. 

•  Oxford  Universities  v.  Richardson,  6  Ves.  705,  706;    Wllklns  v. 
Alkln,  17  Ves.  422. 

•  High,  InJ.  {  938;  Standard  PaJnt  Co.  r.  Reynolds  (C.  0.)  43  Fed. 
804;  Potter  v.  Whitney,  1  Low.  87,  Fed.  Cas.  No.  11,341;  Parker  v. 
Sears,  1  Fish.  Pat.  Cas.  93,  Fed.  Cas.  No.  10,748;    American  Fire 
Hose  Mfg.  Co.  v.  Cornelius  Callahan  Co.  (C.  (X)  41  Fed.  50. 

10  Hill  v.  Thompson.  3  Mer.  622;  Oaldweil  v.  Vanvlissengen,  9 
Hare,  424. 

"  McCoy  T.  Nelson.  121  U.  S.  487,  7  Sup.  Ot  1000,  30  L.  Ed.  1017; 
Wise  v.  Railroad  Co.  (C.  O.)  33  Fed.  277;  Buchanan  v.  Howland,  2 
Fish.  Pat.  Cas.  341,  Fed.  Cas.  No.  2,074. 

it  Wise  T.  Railroad  Co,  (a  C.)  33  Fed.  277;  Sickles  v.  Mfg.  Co..  1 


§    290)  TO   PREVENT   TORTS.  597 

As  a  general  rule,  a  court  of  equity  will  not  lend  its  aid 
by  way  of  preliminary  injunction  in  those  cases  where  the 
complainant  has  acquiesced  in  the  infringement,  and  unrea- 
sonably delayed  suit  against  the  infringers.  In  such  cases 
the  complainant  must  be  satisfied  with  the  relief  afforded  by 
a  decree  after  a  final  hearing.18  And,  independent  of  laches, 
a  complainant  may  be  estopped  from  bringing  suit  by  rea- 
son either  of  his  general  conduct  with  reference  to  the 
property  interest  in  the  invention,  or  on  account  of  specific 
acts  of  acquiescence  imputable  to  him.1* 

Copyrights. 

A  copyright  is  defined  as  the  exclusive  right  of  multiply- 
ing a  work  of  literature  after  its  publication.1'  It  is  now 
established  that  a  copyright  exists  only  by  statute.19  Be- 
fore publication  an  author  has  at  common  law  a  property 
right  in  his  manuscript,  which  will  be  protected  by  courts 
of  equity;  but  by  publication  he  dedicates  it  to  the  public, 
and  loses  his  property  rights,  unless  he  complies  with  the 
copyright  laws.17  It  is  difficult  to  lay  down  definite  rules 
for  the  determination  of  the  question  as  to  what  constitutes 
infringement  of  copyrighted  matter.  It  seems  well  estab- 
lished that  a  bona  fide  extract  or  quotation  may  be  made 
from  a  book  which  is  protected  by  a  copyright,  and  a  bona 
fide  abridgment,  or  a  bona  fide  use  of  the  same  common 
materials,  would  not  constitute  an  infringement.18  To  de- 
termine what  are  bona  fide  extracts  or  abridgments,  the 

Fish.  Pat  Cas.  222,  Fed.  Gas.  No.  12,841;  Sanders  v.  Logan,  2  Fish. 
Pat.  Cas.  167,  Fed.  Cas.  No.  12,25)5. 

i»  Green  v.  French,  4  Barn.  &  H.  169,  Fed.  Cas.  No.  5,757;  Wyeth 
v.  Stone,  1  Story,  273,  Fed.  Cas.  No.  18,107;  Keyes  v.  Refining  Co. 
(C.  C.)  Sf  Fed.  560;  McLaughlin  v.  Railroad  Co.  (C.  C.)  21  Fed,  574. 

i*  Kittle  v.  Hall  (C.  C.)  29  Fed.  508;  Union  Mfg.  Co.  v.  Lounsber- 
ry,  2  Fish.  Pat.  Cas.  389,  Fed.  Cas.  No.  14,368;  Magic  Ruffle  Co.  v. 
Elm  City  Co.,  14  Blatchf.  109,  Fed.  Cas.  No.  8,950. 

IB  Jefferys  v.  Boosey,  4  H.  L.  Cas.  833;  Stephens  v.  Cady,  14  How. 
530,  14  L.  Ed.  528;  Baker  v.  Selden,  101  U.  S.  99,  25  L.  Ed.  841. 

i«  Jefferys  v.  Boosey,  4  H.  L.  Cas.  833;  Wheaton  v.  Peters,  8  Pet 
591,  8  L.  Ed.  1055;  Clemens  v.  Belford,  Chirk  &  C<x  (C.  O.)  14  Fed. 
728. 

IT  Bartiett  v.  Crittenden,  5  McLean,  32,  Fed.  Cas.  No.  1,076;  Carte 
T.  Duff  (C.  C.)  25  Fed.  183;  Clemens  v.  Belford,  Clark  &  Co.  (C.  O.) 
14  Fed.  728. 

a»  Story,  Eq.  Jur.  S  939;  Eden,  Inj.  c.  13,  pp.  280,  281. 


698  INJUNCTION.  (Ch.  22 

court  will  consider  the  quantity,  value,  nature,  and  objects 
of  the  selection  made,  and  the  degree  in  which  the  use  may 
prejudice  the  sale,  or  diminish  the  profits,  or  supersede  the 
objects,  of  the  original  work.19  And  the  honest  intention 
of  the  subsequent  writer  to  make  only  such  use  of  the  ex- 
tracted material  as  will  produce  no  substantial  injury  to  the 
proprietor  of  the  original  work  will  be  given  due  weight  in 
determining  the  question  as  to  whether  an  injunction  should 
be  granted.20 

Literary  Property. 

The  author  of  an  unpublished  work  of  literature,  science, 
or  art  is,  of  course,  entitled  to  an  injunction  against  its 
unauthorized  publication  by  others,  whether  he  does  or  does 
not  intend  to  seek  profit  by  future  publication.21  The  same 
principle  applies  to  private  letters,  whether  on  literary  sub- 
jects or  on  matters  of  private  business,  personal  friendship, 
or  family  concerns.  The  writer  of  private  letters  has  such 
a  qualified  right  of  property  in  them  as  will  entitle  him  to 
an  injunction  to  restrain  their  publication  by  the  person 
written  to  or  his  assignees,22  and  the  person  written  to  has 

i»  Folsom  v.  Marsh,  2  Story,  100,  Fed.  Gas.  No.  4,901.  And  see 
Wilkius  v.  Aikin,  17  Ves.  422;  Bramwell  v.  Halcomb,  3  Mylne  &  C. 
788;  Scott  v.  Stanford,  L.  It.  3  Eq.  718. 

20  Lawrence  v.  Dana,  4  Cliff.  1,  Fed.  Gas.  No.  8,136.     And  see,  on 
the  general  question,  Story  v.  Holcombe,  4  McLean,  306,  Fed.  Cas. 
No.  13,497;  Heed  v.  Ilolliday  (C.  C.)  19  Fed.  325. 

21  Prince  Albert  v.  Strange,  1  Macn.  &  G.  42;  Grigsby  v.  Breckin- 
ridge,  2  Bush    (Ky.)  480;    Paige  v.  Banks,  13  Wall.  608,  20  L.  Ed. 
709.    The  lending  case  on  the  subject  Is  Prince  Albert  v.  Strange. 
Her  majesty,  Queen  Victoria,  and  the  Prince  Consort,  had  made  cer- 
tain etchings,  and  had  certain  lithographs  struck  off  from  them  for 
their  own  use,  and  not  for  the  purpose  of  publication.    One  of  the 
Impressions  had  been  surreptitiously  retained  by  one  of  the  work- 
men employed  in  the  operation,  and  had  passed  from  his  hands  into 
the  hands  of  a  publisher,  who  declared  his  intention  of  publicly  ex- 
hibiting the  impression  so  Improperly  obtained,  and  also  of  selling 
a  descriptive  catalogue  of  the  lithographs.    Lord  Cottenham   re- 
•trained  the  publication  of  the  catalogue,  as  well  as  the  exhibition 
of  the  impression,  upon  the  ground  that,  as  the  etchings  were  the 
exclusive  property  of  the  plaintiff,  no  one  had,  without  his  consent, 
the  right  to  make  any  use  whatever  of  them,  either  by  publishing  a 
catalogue  of  them  or  otherwise. 

22  Gee  v.  Prltchard,  2  Swans-L  418;   Woolsey  v.  Judd,  4  Duer  (N. 
Y.)  379;    Denis  v.  Leclerc.  1  Mart.  (La.)  2U7;    Grigsby  v.  Breckln- 
rldge,  2  Bush  (Ky.)  480,  92  Am.  Dec.  509. 


§   290)  TO    PREVENT   TORTS.  599 

such  a  qualified  right  of  property  in  the  letters  as  will  entitle 
him  or  his  personal  representatives  to  restrain  their  publica- 
tion by  a  stranger.23 

As  regards  lectures,  persons  admitted  as  pupils  or  other- 
wise to  hear  them  cannot  publish  them  for  profit,  and  will  be 
restrained  from  so  doing;24  and,  though  they  have  been 
partly  published  by  the  lecturer,  he  is  entitled  to  an  injunc- 
tion against  their  publication  by  others  in  an  incorrect  and 
garbled  form.26 

Trade-Marks. 

A  trade-mark  is  a  peculiar  name  or  device  by  which  a  per- 
son dealing  in  an  article  designates  it  as  of  a  peculiar  kind, 
character,  or  quality,  or  as  manufactured  by  or  for  him, 
and  of  which  he  is  entitled  to  the  exclusive  use.28  The  ex- 
clusive right  to  make  such  use  or  application  is  rightly  treat- 
ed as  property,  and  no  other  dealer  has  the  right  to  use  the 
same  mark  on  goods  of  the  same  description.  By  so  doing 
he  would  be  substantially  representing  the  goods  to  be  the 
manufacture  of  the  dealer  who  had  previously  adopted  the 
mark  or  brand  in  question,  and  so  would  or  might  deprive 
him  of  the  profit  he  might  have  made  by  the  sale  of  the  goods 
which  the  purchaser  intended  to  buy.  The  jurisdiction  of  a 
court  of  equity,  therefore,  to  restrain  the  infringement  of 
a  trade-mark  is  founded,  not  upon  the  imposition  upon  the 
public  practiced  by  the  palming  off,  by  one  man,  of  his  goods 
as  the  goods  of  another,  but  on  the  wrongful  invasion  of  the 
right  of  property  acquired  in  the  trade-mark.27  It  therefore 
follows  that  the  fraudulent  use  of  marks  and  labels  for  the 
purpose  of  deceiving  the  public  will  not  be  enjoined  at  the 
suit  of  persons  who  do  not  carry  on  any  business  to  which  the 

as  Earl  of  Granard  v.  Dunkin,  1  Ball  &  B.  207;  Thompson  v.  Stan- 
hope, Amb.  737. 

24  Abernethy  v.  Hutchinson,  1  Hall  &  T.  28,  40,  3  Law  J.  Oh.  209; 
Caird  v.  Sime,  12  App.  Gas.  326;  Bartlette  v.  Crittenden,  4  McLean, 
300,  Fed.  Gas.  No.  1,082. 

20  Drumrnond  v.  Altenius  (C.  C.)  60  Fed.  338. 

20  Weener  v.  Bray  ton,  152  Mass.  101,  25  N.  E.  46,  8  L.  R.  A.  640; 
Rogers  v.  Taintor,  97  Mass.  291;  Kerr,  Inj.  p.  394. 

27  Leather  Cloth  Go.  v.  Cloth  Co.,  4  De  Gex,  J.  &  S.  137;  Mitchell 
v.  Henry,  15  Ch.  Div.  191;  Schneider  v.  Williams,  44  N.  J.  Eq.  391, 
14  Atl.  812;  Weener  v.  Bray  ton,  152  Mass.  101,  25  N.  E.  46,  8  L,  R. 
A.  040;  U.  S.  v.  Steffens,  100  U.  S.  82,  25  L.  Ed.  530. 


600  INJUNCTION.  (Ch.  22 

use  of  such  marks  and  labels  is  incident, — such  as  the  officers 
and  members  of  a  labor  organization,  which  has  adopted  a 
label  to  designate  goods  manufactured  by  its  members  as 
employes  of  others.28 

An  act  of  congress  provides  for  the  registration  of  trade- 
marks in  the  patent  office,  and  gives  a  remedy,  either  by  way 
of  damages,  or  by  injunction  in  equity,  for  their  infringe- 
ment ;  "  but  the  right  to  trade-marks  and  the  remedies 
for  their  infringement  exist  independent  of  this  statute.80 
It  has  also  been  held  that  the  state  courts  have  jurisdiction 
in  trade-mark  cases,  since  the  federal  constitution  does  not 
place  this  matter  within  the  control  of  congress,  except,  per- 
haps, by  virtue  of  the  power  to  regulate  commerce.81 


INJUNCTIONS     AGAINST   BREACH   OP  TRUST  AND 
VIOLATION  OP  EQUITABLE  RIGHTS. 

291.  Equity  will  restrain  the  breach  of  a  trust  or 
confidence,  or  any  act  in  violation  of  an 
equitable  right,  estate,  or  interest,  when- 
ever the  circumstances  are  such  that  the 
aid  of  an  injunction  is  required. 

The  jurisdiction  of  a  court  of  equity  in  such  cases  is  not 
based  upon  the  inadequacy  of  the  remedy  at  law,  since  the 
rights  and  interests  involved  are  purely  equitable,  and  are 
not  cognizable  at  law.  If  an  interest  or  estate  is  shown  to 
be  equitable,  a  court  of  equity  may  afford  any  remedy  with- 
in its  power  for  the  protection  thereof ;  and  when  the  neces- 

"  Weener  v.  Brayton,  152  Mass.  101.  25  N.  E.  46,  8  L.  R.  A.  640; 
Cigar  Makers'  Protective  Union  v.  Conliaim,  40  Minn.  243,  41  N.  W. 
943.  3  L.  R.  A.  125,  12  Am.  St  Rep.  726;  Schneider  v.  Williams,  44 
N.  J.  Eq.  391,  14  Atl.  812.  A  fraudulent  use  of  the  union  label  may 
be  enjoined  by  a  manufacturer  who  has  adopted  it,  and  whose  busi- 
ness is  Injured  by  the  fraudulent  use.  Carson  v.  Ury  (C.  C.)  39  Fed. 
777.  5  L.  It.  A.  614.  Since  these  decisions  have  been  made,  statutes 
have  been  passed  in  many  of  the  states  protecting  labels  and  trade- 
murks  adopted  by  labor  organizations. 

«  Act  Gong.  March  8,  1881  (21  Stat  502). 

•o  Harris  Drug  Co.  r.  Stucky  (C.  C.)  46  Fed.  624. 

»  Small  v.  Sanders,  118  Ind.  105,  20  N.  E.  296;  U.  S.  v.  Steffens, 
100  U.  3.  82.  25  L.  Ed.  500. 


§    292)  IN    MATTERS   OF   TAXATION.  601 

sity  arises  an  injunction  may  be  granted  to  restrain  a  trans- 
fer, incumbrance,  or  any  other  act  which  would  prejudice 
the  rights  of  the  owner  of  such  interest  or  estate.  A  trus- 
tee may  not  use  the  power  which  the  trust  confers  on  him, 
except  for  the  legitimate  purposes  of  the  trust.  If  he  at- 
tempts to  do  so,  equity  will  restrain  him  by  injunction  from 
making  a  wanton  exercise  of  his  legal  powers.1  So,  also, 
equity  may  restrain  by  injunction  one  or  more  members  of 
a  partnership  from  doing  acts  inconsistent  with  the  terms  of 
the  partnership  agreement,  or  with  the  duties  of  a  partner, 
although  a  dissolution  is  not  sought.2  And  equity  will  in- 
terfere to  restrain  a  corporation,  at  the  suit  of  a  stockholder, 
from  doing  acts  beyond  the  authority  conferred  on  it  by  its 
charter,  or  from  violating  the  duties  which  in  equity  attach 
to  the  relation  of  directors  and  stockholders  inter  se.8  Where 
a  negotiable  instrument  is  invalid  as  between  the  parties, 
the  maker  is  entitled  to  an  injunction  against  its  negotia- 
tion by  the  payee  to  an  innocent  holder,  whereby  the  de- 
fense would  be  lost ;  *  and  so  with  corporate  stock  and  other 
securities  not  strictly  negotiable." 


INJUNCTIONS  IN  MATTERS  OP  TAXATION. 

292.  Courts  of  equity  will  not  interfere  to  restrain 
the  collection  of  a  tax,  unless  the  case  is 
brought  within  some  acknowledged  head 
of  equity  jurisprudence  ;  that  is,  unless  the 
enforcement  of  the  tax  would  lead  to  a 
multiplicity  of  suits,  produce  irreparable 

§  291.^  i  Balls  v.  Strutt.  1  Hare.  146;  Cohen  v.  Morris,  70  Ga.  313; 
Davis  v.  Browne,  2  Del.  Ch.  188. 

2  Fairthorne  v.  Weston,  3  Hare,  387;  Rutland  Marble  Co.  v.  Rip- 
ley,  10  Wall.  339,  19  L.  Ed.  955;  New  v.  Wright,  44  Miss.  202. 

a  Hawes  v.  Oakland,  104  U.  S.  450,  26  L.  Ed.  827;  Gamble  v.  Wa- 
ter Co.,  123  N.  Y.  91,  98,  99,  25  N.  E.  201,  9  L.  R.  A.  527;  Wiswell  v. 
First  Congregational  Church,  14  Ohio  St.  31;  Small  v.  Electro-Matrix 
Co.,  45  Mum.  264,  267,  47  N.  W.  797. 

*  Metler's  Adm'rs  v.  Metier,  18  N.  J.  Eq.  270;   Moeckly  v.  Gorton, 
78  Iowa,  202,  42  N.  W.  648;   Wilhelmson  v.  Bentley,  25  Neb.  473,  41 
N.  W.  387;  Hinkle  v.  Margerum,  50  Ind.  240;  Hile  v.  Davison,  20  N. 
J.  Eq.  229. 

•  King  v.  King,  6  Ves.  172. 


602  INJUNCTION.  (Ch.  22 

injury,  throw  a  cloud  upon  the  title  of  real 
estate,  or  unless  the  tax  is  illegal,  or  the 
assessment  void,  because  of  fraud  or  mis- 
take. 

There  is  an  apparent  want  of  harmony  in  the  decisions  as 
to  the  exercise  of  the  jurisdiction  of  a  court  of  equity  in  re- 
straining the  collection  of  taxes.  In  the  ordinary  process 
of  the  collection  of  revenue,  there  is  a  decided  weight  of 
authority  against  equitable  interference  with  the  exercise 
of  the  taxing  power.  Equity  will  not  interfere  where  the 
tax  is  illegal  or  void,  merely  because  of  its  illegality,  hard- 
ship, or  irregularity,  but  there  must  be  some  special  cir- 
cumstances attending  the  injury  threatened  which  will  bring 
the  case  within  some  recognized  head  of  equity  jurispru- 
dence; otherwise,  the  person  aggrieved  will  be  left  to  his 
remedy  at  law.1 

Statutes  have  been  passed  in  some  of  the  states  author- 
izing the  granting  of  injunctions  in  matters  of  taxation.  In 
other  states  the  granting  of  such  injunctions  is  restricted. 
The  laws  of  many  of  the  states  provide  for  the  review  of  er- 
roneous assessments  by  writs  of  certiorari.  An  adequate 
legal  remedy  being  thus  available,  courts  of  equity  will  refuse 
to  interfere  by  injunction,  unless  to  prevent  irreparable  in- 
jury, multiplicity  of  suits,  or  the  consummation  of  gross 
fraud  on  the  part  of  the  assessors.2 

If  a  tax  is  wholly  void,  a  court  of  equity  may,  subject  to 
the  rules  already  stated,  interfere  by  injunction  to  restrain 

§  292.  i  Dows  v.  City  of  Chicago,  11  Wall.  108,  20  L.  Ed.  65; 
Heywood  v.  City  of  Buffalo,  14  N.  Y.  534;  McConkey  v.  Smith,  73 
111.  313;  Warden  r.  Supervisors,  14  Wis.  672;  State  Railroad  Tax 
Cases,  92  U.  S.  575,  28  L.  Ed.  669;  Cummings  v.  Bank,  101  U.  S. 
153,  25  L.  Ed.  903;  Hunnewell  v.  City  of  Charlestown,  106  Mass.  350. 

2  Western  R.  Co.  v.  Nolan,  48  N.  Y.  513,  519.  It  was  said  in  this 
case:  "The  rule  that  equity  will  not  Interfere  by  Injunction  where 
there  Is  a  sufficient  remedy  at  law  is  equally  well  settled.  The 
remedy  by  certiorari  has  been  repeatedly  adopted  and  sustained  by 
the  court  of  appeals  In  such  cases.  If  promptly  urged,  upon  proper 
proofs  presented  to  the  assessors  In  due  season,  this  remedy  is  ade- 
quate for  the  correction  of  all  errors  and  injustice  liable  to  be  com- 
mitted In  the  performance  of  their  official  duties."  The  statutes  of 
New  York  have,  since  1880,  provided  the  remedy  by  certiorari.  See 
New  York  Tax  Law  (Laws  1896.  c.  908)  art  U. 


§§  293-294)    AGAINST  PUBLIC  OFFICERS  AND  MUNICIPALITIES.    603 

its  collection.*  In  all  such  cases  the  illegality  of  the  tax 
must  clearly  appear.4  The  presumption  is  always  in  favor 
of  the  validity  of  the  tax.5  Mere  irregularities  and  informal- 
ities of  the  tax  officers,  which  are  not  productive  of  substan- 
tial injury,  and  do  not  render  the  tax  void,  will  not  justify 
interference  by  a  court  of  equity.8  If  the  assessment  or 
levy  of  a  tax  is  tainted  with  fraud,  sufficient  grounds  exist 
for  granting  an  injunction ; T  as  when,  by  collusion  between 
assessors  and  owners,  property  is  assessed  far  below  its  real 
value,  the  owners  of  other  property  are  entitled  to  relief, 
to  the  extent,  at  least,  of  the  amount  added  to  their  taxes 
bv  the  fraudulent  undervaluation.8 


INJUNCTIONS    AGAINST    PUBLIC    OFFICERS    AND 
MUNICIPALITIES. 

293.  Public  bodies  and  public  officers  may  be  re- 

strained by  injunction  from  proceeding  in 
violation  of  law  to  the  prejudice  of  the 
public  or  the  injury  of  public  rights. 

294.  A  court  of  equity  will  not  exercise  its  juris- 

diction in  such  cases  except: 

(a)  To    prevent    a    breach  of  trust  affecting  the 

public  interests. 

(b)  To  prevent  an  illegal  act  under  color  or  claim 

of  right,  affecting  injuriously  the  property 
rights  of  individuals. 

(c)  That  it  be  shown  that  the  complainant  has  a 
>.    clear  and  legal  right  to  the  relief  demanded, 

»  Davis  v.  Burnett,  77  Tex.  3,  13  S.  W.  613;  St  Louis  &  S.  F.  Ry. 
Co.  v.  Apperson,  97  Mo.  300,  10  S.  W.  478. 

*  Van  Nort's  Appeal,  121  Pa.  129,  15  Atl.  473;  Union  Trust  Co.  v. 
Weber,  96  111.  346. 

e  Tingue  v.  Village  of  Port  Chester,  101  N.  Y.  294,  4  N.  E.  625. 

0  Davis  v.  Railway  Co.,  114  Ind.  364,  16  N.  E.  639;    Keigwin  v. 
Commissioners,  115  111.  347,  5  N.  E.  575. 

1  Walsh  v.  King,  74  Mich.  350,  41  N.  W.  1080;    Leiteh  v.  Went- 
worth,  71  111.  146;   Chicago,  B.  &  Q.  R.  Co.  v.  Cole,  75  111.  591. 

s  Walsh  v.  King,  74  Mich.  350,  41  N.  W.  1080.  And  see  Merrill  v. 
Humphrey,  24  Mich.  170;  Kemble  v.  City  of  Titusville,  135  Pa.  141, 
19  Atl.  940. 


604  INJUNCTION.  (Ch.  22 

or  some  part  of  it,  -which  cannot  be  afforded 
•without  an  injunction,  and  also  that  some 
act  is  being  done  by  the  defendant,  or  is 
threatened  and  imminent,  -which  •will  be 
destructive  of,  or  injurious  to,  such  right.1 

A  court  of  equity  has,  as  such,  no  supervisory  power  or 
jurisdiction  over  public  officials  or  public  bodies,  and  only 
takes  cognizance  of  actions  against  or  concerning  them  when 
a  case  is  made  coming  within  one  of  the  acknowledged 
heads  of  equity.8  But  the  jurisdiction  of  the  court  over  a 
public  officer  is  well  established,  within  the  limits,  at  least, 
prescribed  in  the  black-letter  text.* 

It  is  not,  however,  the  mere  fact  that  a  public  officer  is 
attempting  to  exercise  a  void  authority  which  induces  a  court 
of  equity  to  restrain  him,  but  that,  notwithstanding  he  is  a 
public  officer,  he  is  about,  by  such  exercise,  to  do  an  act 
which  brings  the  case  within  its  peculiar  jurisdiction ;  for  ex- 
ample, an  act  in  breach  of  trust,  in  derogation  of  a  contract 
which  ought  to  be  specifically  enforced,  or  an  act  of  irrepara- 
ble mischief  to  the  real  estate  of  another.4  While  equity  will 
not  ordinarily  interfere  in  matters  resting  in  the  discretion 
of  municipal  authorities,  if  the  threatened  act  will  produce 
irreparable  injury,  or  is  corrupt  and  fraudulent,  the  court 
may  interfere  by  injunction."  Mr.  Spelling,  in  his  Treatise 
on  Extraordinary  Relief,  concludes,  from  an  examination  of 
the  authorities,  that  two  things  must  exist  to  warrant  relief 
by  injunction  against  a  public  officer  or  a  municipality: 
"First,  that  the  act  is  an  excess  of  the  legal  authority  con- 
ferred upon  the  municipal  body;  second,  that  its  conse- 
quences, if  not  prevented,  will  result  in  an  increase  of  taxa- 
tion, thus  imposing  an  additional  burden  upon  individual 

§§  290,  294.     »  People  v.  Board,  65  N.  T.  390,  394. 

•  Id. 

»  People  v.  Dwyer,  90  N.  Y.  410;  Littler  v.  Jayne,  124  HI.  123,  16 
N.  E.  374;  Delaware  Co.'s  Appeal,  119  Pa.  159,  13  Atl.  62;  Brlggs  T. 
BonJen,  71  Mich.  87,  38  N.  W.  712. 

«  Greene  T.  Mumford,  6  R.  I.  472,  73  Am.  Dec.  79;  Darby  v. 
Wright,  8  Blatchf.  170,  Fed.  Cns.  No.  3,574;  Blgelow  T.  Bridge  Co., 
14  Conn.  565,  36  Am.  Dec.  502. 

•  People  v.  Dwyer,  90  N.  Y.  402;   Kltchel  T.  Board,  123  Ind.  640, 
24  N.  E.  306. 


§§  293-294)   AGAINST  PUBLIC  OFFICERS  AND  MUNICIPALITIES.    605 

taxpayers,  or  otherwise  inflict  irreparable  injury,  or  lead  to 
numerous  actions  or  proceedings  to  correct  the  wrong."  • 

The  jurisdiction  of  equity  extends  to  the  restraint  of  the 
illegal  and  wrongful  acts  of  municipal  coroorations  as  such, 
when  it  is  shown  that  such  acts  will  result  in  irreparable  in- 
jury.7 This  jurisdiction  is  based  upon  the  theory  that  a 
municipal  corporation  is  the  depositary  of  a  trust,  which  it 
is  bound  to  administer  faithfully,  honestly,  and  justly;  and, 
if  it  is  guilty  of  a  breach  of  the  trust,  it  will  stand  upon  the 
same  footing  as  if  it  were  the  representative  of  a  private 
individual.8  The  most  frequent  use  of  this  equitable  juris- 
diction is  for  the  prevention  of  illegal  acts  which  will  in- 
crease the  burden  of  taxation.'  In  many  states  statutes 
have  been  enacted  authorizing  actions  by  taxpayers  to  re- 
strain any  illegal  official  act  on  the  part  of  the  officers  of 
municipal  corporations.10 

•  §  677. 

»  Place  v.  Oity  of  Providence,  12  R.  I.  1;  Port  of  Mobite  r.  Rail- 
road Co.,  84  Ala.  115,  4  South.  106,  5  Am.  St.  Rep.  342;  McOord  v. 
Pike,  121  111.  288,  12  N.  E.  259,  2  Am.  St.  Rep.  85;  City  of  Valparaiso 
v.  Gardner,  97  Ind.  1,  49  Am.  Rep.  416. 

•  Milhau  v.  Sharp,  15  Barb.  (N.  Y.)  193;   Village  of  Hyde  Park  v. 
City  of  Chicago,  124  111.  161,  16  N.  E.  222. 

»  McCord  v.  Pike,  121  I1L  288,  12  N.  E.  259,  2  Am.  St  Rep.  85; 
Peck  v.  Belknap,  55  Hun,  96,  8  N.  Y.  Supp.  265;  Ayera  r.  Lawrence, 
69  N.  Y.  192. 

10  Warrin  v.  Baldwin,  105  N.  Y.  534,  12  N.  E.  49;  Ayers  v.  Law- 
rence, 59  N.  Y.  192. 


60S  PARTITION,  DOWER,  AND    BOUNDARIES.  (Cil.  23 


CHAPTER  XXTTI. 

PARTITION,  DOWER,  AND  ESTABLISHMENT  OF 
BOUNDARIES. 

295.  Partition— Definition. 

29(V-2O7.  Jurisdiction  in  Equity— Modern  Statutes. 

2!>8-2!>9.  Procedure  in  Equity. 

300.  Who  Entitled  to  Partition. 

301.  What  is  Subject  to  Partition. 

302.  Allowance  for  Improvements. 
803-304.  Assignment  of  Dower. 

305.     Establishment  of  Boundaries. 


PARTITION— DEFINITION. 

295.  Partition  is  the  segregation  of  property  owned 
in  undivided  shares,  so  as  to  vest  in  each 
co-owner  exclusive  title  to  a  specific  por- 
tion in  lieu  of  his  undivided  interest  in 
the  whole. 

The  term  "partition"  is  generally,  but  not  exclusively,  ap- 
plied to  real  estate.1  All  kinds  of  property  may  be  parti- 
tioned by  the  voluntary  acts  of  the  owners.  In  the  case  of 
real  estate,  this  is  usually  accomplished  by  a  conveyance  or 
release,  to  each  co-tenant  by  the  others,  of  the  portion 
which  he  is  entitled  to  hold  in  severally.2  But,  even  when 
no  actual  conveyance  is  made,  a  voluntary  written  agree- 
ment for  a  partition  will  be  treated  as  such  in  equity,  and 
specific  performance  will  be  enforced  by  conveyance.8  And 
a  parol  partition  may  be  made  of  lands  owned  by  tenants  in 
common,  provided  each  party  takes  and  retains  exclusive 
possession  of  the  portion  allotted  to  him.4 

§  295.     i  Bouv.  Law  Diet  tit.  "Partition." 

2  Freem.  Oo-Ten.  §  406;  Yancey  v.  Radford.  88  Va.  638,  10  8.  E. 
972. 

a  Mnsterson  v.  Flnnigan.  2  R.  I.  318;  Gage  v.  Blssell,  119  111.  298, 
10  N.  E.  23N;  Tomlin  v.  Hllyard,  43  111.  302,  92  Am.  Dec.  118;  Da- 
Tldsou  v.  Coon,  125  Ind.  502,  25  N.  E.  <K)1,  9  L.  R.  A.  584. 

*  \\uud  v.  Fleet,  30  N.  Y.  499,  98  Am.  Dec.  528;  Taylor  y.  Miilard. 


§§  296-297)  PARTITION.  607 

SAME— JURISDICTION   IN    EQUITY— MODERN    STAT- 
UTES. 

296.  The  jurisdiction  of  equity  in  cases   of  parti- 

tion of  real  estate  originated  because  of  the 
inadequacy  and  inconvenience  of  the  com- 
mon-law remedy  by  writ  of  partition. 

297.  In   England,   and  in  nearly   all   of  the  United 

States,  the  partition  of  real  property  is 
regulated  by  statutes;  either  increasing  the 
efficiency  and  adaptability  of  the  common- 
law  remedy,  or  declaring  the  legal  and 
equitable  rights  and  remedies  previously 
existing. 

Partition  by  parties  entitled  thereto  was  a  matter  of  right 
at  common  law,  and  could  be  enforced  regardless  of  the 
inconvenience  and  hardship  occasioned  thereby.1  The  com- 
mon-law writ  of  partition  was  limited  to  those  cases  where 
the  joint  ownership  arose  by  operation  of  the  law.  The 
right  to  the  writ  was  thus  restricted  to  coparceners,2  al- 
though it  was  afterwards  extended  in  favor  of  joint  tenants 
or  tenants  in  common  whose  estate  arose  by  gift  or  con- 
tract.3 The  common-law  remedy  was,  at  an  early  period, 
found  inadequate  and  incomplete,  because  of  the  various 
and  complicated  interests  which,  in  process  of  time  arose 
out  of  or  attached  to  the  ownership  of  real  estate,  and  be- 

118  N.  ?.  244,  23  N.  E.  376,  6  L.  R.  A.  667;  Mitchell  v.  Mitchell,  68 
Mich.  106,  35  N.  W.  844;  Bruce  v.  Osgood,  113  Ind.  360,  14  N.  E. 
503;  Hamilton  v.  Phillips,  83  Ga.  296,  9  S.  E.  606. 

§§  2iH>,  297.  i  Lord  Coke  observed  that  the  only  sort  of  tenure 
that  could  net  be  the  subject  of  partition  was  a  castle;  that  being 
necessary  for  the  defense  of  the  realm. 

2  An  estate  in  coparcenary  existed  where  land,  on  the  death  of 
the  owner  intestate,  devolved  on  several  persons  as  co-heirs.  Under 
the  English  law  of  primogeniture,  the  oldest  son,  if  there  was  one, 
became  entitled  to  the  land  on  his  father's  death,  and  hence  the 
estate  of  coparcenary  existed  only  where  the  deceased  left  sur- 
viving him  daughter's,  and  no  sons. 

»  Adams,  Eq.  p.  229. 


608  PARTITION,  DOWER,  AKD    BOUNDARIES.  (Ch.    23 

cause  courts  of  law  could  neither  compel  discovery  as  to 
titles,  nor  effectuate  the  partition  in  fact  by  compelling 
mutual  conveyances.4  Another  inconvenience  attending  a 
partition  at  law  was  the  fact  that  the  writ  could  only  be 
issued  by  or  against  those  in  possession,  so  that  an  estate 
in  remainder  or  contingency  could  not  be  reached.  And, 
besides  all  this,  the  judgment  in  each  case  was  for  partition 
according  to  title  proved,  and  it  was  necessary,  therefore, 
for  the  plaintiff  to  prove  the  defendant's  title  as  well  as  his 
own ;  and  the  partition,  when  made,  was  not  by  mutual  con- 
veyances, but  by  an  actual  division  of  the  property  by  the 
sheriff;  and  the  subsequent  judgment  of  the  court  could 
not  be  conveniently  adapted  to  the  requirements  of  each 
case.  These  disadvantages,  and  the  superiority  of  equitable 
methods,  naturally  led  to  a  resort  to  courts  of  equity  for 
relief  in  cases  of  partition.  As  was  said  by  Lord  Redesdale : 
"In  the  case  of  partition  of  an  estate,  if  the  titles  of  the 
parties  are  in  any  degree  complicated,  the  difficulties  which 
have  occurred  in  proceeding  at  the  common  law  have  led  to 
applications  to  courts  of  equity  for  partitions,  which  are 
affected  by  first  ascertaining  the  rights  of  the  several  per- 
sons interested,  and  then  issuing  a  commission  to  make  the 
partition  required ;  and  upon  return  of  the  commission,  and 
confirmation  of  that  return  by  the  court,  the  petition  is 
finally  completed  by  mutual  conveyances  of  the  allotments 
made  to  the  several  parties."  5  Equity  began  to  exercise 
jurisdiction  in  cases  of  partition  during  the  reign  of  Queen 
Elizabeth,  and  its  procedure  proved  so  effective  that  the 
common-law  writ  became  rather  a  matter  of  antiquarian  in- 
terest than  of  practical  importance.  It  was  finally  abolished 
in  England  by  statute  passed  in  1833,  and  the  equity  juris- 
diction thus  became  exclusive.* 

In  the  case  of  an  undivided  ownership  of  chattels  per- 
sonal, the  legal  results  were  even  more  unsatisfactory  and 
inconvenient  than  in  the  case  of  realty.  Thus,  Littleton 
says:  "If  two  be  possessed  of  chattels  personalls  in  com- 
mon by  divers  titles,  as  of  an  horse,  an  oxe,  or  a  cowe,  &c., 
if  the  one  takes  the  whole  to  himself  out  of  the  possession 

«  Snell,  Eq.  p.  504. 

•  Wills  y.  Slade,  6  Vcs.  496.    And  see  Hall  T.  Plddock,  21  N.  J. 
Eq.  314. 

•  ilay  nea,  Eq.  pp.  100-102. 


§§  298-29U)  PARTITION.  609 

of  the  other,  the  other  hath  no  remedie  but  to  take  this  from 
him  who  hath  done  to  him  the  wrong,  to  occupie  in  com- 
mon, &c.,  when  he  can  see  his  time."  7 

Modem  Statutes. 

The  subject  of  partition,  both  in  England  and  in  this  coun- 
try, is  now  regulated  by  statutes,  which  are  generally  either 
for  the  purpose  of  adding  to  the  efficiency  and  adaptability 
of  the  common-law  remedy  or  are  declaratory  of  the  legal 
and  equitable  rights  and  remedies  which  previously  existed. 
These  statutes,  for  the  most  part,  do  not  exclude  the  ex- 
ercise of  jurisdiction  by  courts  of  equity.  They  are  gener- 
ally construed  as  merely  cumulative  in  effect,  and  not  as  re- 
moving nor  disturbing  such  jurisdiction.8  Where  law  and 
equity  are  administered  by  the  same  tribunals,  the  cases 
formerly  cognizable  in  courts  of  equity  are  within  the  juris- 
diction of  such  tribunals,  which  possess  the  same  jurisdic- 
tion and  power  in  cases  of  partition  as  were  formerly  had 
by  the  court  of  chancery." 


SAME— PROCEDURE  IN  EQUITY. 

298.  Originally,  in  equity,  the  partition  was  effect- 
ed by  mutual  conveyance  after  ascertain- 
ing the  rights  of  the  several  parties  in 
interest.  If  the  estate  could  not  be  exactly 
or  fairly  divided,  the  court  decreed  pecun- 
iary compensation  to  one  or  more  of  the 
parties  as  "owelty",  which  included  a  pay- 

T  Co.  Litt.  §  323.  The  position  of  tenants  in  common  of  chattels 
when  at  odds  with  each  other  is  forcibly  illustrated  in  the  following 
story:  Two  men  are  tenants  in  common  of  an  elephant,  and  one 
declines  either  to  pay  anything  to  the  other  in  the  shape  of  profits 
of  exhibition,  or  to  buy  his  co-owner's  share,  and  is  at  last  brought 
to  reason  only  by  the  threat  of  the  injured  party  to  shoot  his  undi- 
vided moiety.  Haynes,  Eq.  p.  99. 

s  Whitten  v.  Whitten,  36  N.  H.  332;  Wright  v.  Marsh,  2  G.  Greene 
(Iowa)  104;  Wilkinson  v.  Stuart,  74  Ala,  203;  Labadle  v.  Hewitt,  85 
111.  341;  Robinson  v.  Fair,  128  U.  S.  53,  81,  91,  9  Sup.  Ct  30,  32  L. 
Ed.  415. 

»  Spitts  v.  Wells,  18  Mo.  468;  Holloway  v.  Holloway,  97  Mo.  628, 
11  S.  W.  233,  10  Am.  St.  Rep.  345. 

EATON.EQ.— 38 


610  PARTITION,  DOWKB,  AND    BOUNDARIES.  (Ch.   23 

xnent  of  money,  or  a  charge  upon  the  land 
by  •way  of  rent,  servitude,  or  easement. 

299.  If  all  the  parties  who  were  sui  juris  consent- 
ed, the  court  could  decree  a  sale  of  the 
property  and  a  division  of  the  proceeds. 

Division  and  Mutual  Conveyances. 

It  was  customary  in  equity  to  first  ascertain  the  interests 
of  the  parties  in  the  property  sought  to  be  partitioned,  for 
which  purpose,  if  they  did  not  appear  upon  the  pleadings,  a 
reference  was  made  to  a  master.  Afterwards  a  commis- 
sion was  issued  to  make  the  required  partition.  Upon  the 
return  of  the  commission,  and  its  confirmation  by  the  court, 
the  partition  was  finally  completed  by  mutual  conveyances 
of  the  allotments  made  to  the  several  parties.1  Sometimes, 
instead  of  ordering  a  commission,  the  court  made  a  declara- 
tion that  the  estate  ought  to  be  divided,  in  which  case  the 
parties  were  permitted  to  bring  before  the  judge  at  cham- 
bers, proposals  for  a  partition."  As  has  been  stated  in  an 
often-quoted  New  Jersey  case,  which  fully  illustrates  and 
explains  th*  equitable  method  of  procedure  in  partition : 
"The  peculiarities  of  an  equitable  partition  are  that  such  part 
of  the  land  as  may  be  more  advantageous  to  any  party  on 
account  of  its  proximity  to  his  other  land,  or  for  any  other 
reason,  will  be  directed  to  be  set  off  to  him  if  it  can  be  done 
without  injury  to  the  others;  that,  when  the  lands  are  in 
several  parcels,  each  joint  owner  is  not  entitled  to  a  share 
of  such  parcel,  but  only  to  his  equal  share  in  the  whole ;  that, 
where  a  partition  exactly  equal  cannot  be  made  without 
injury,  a  gross  sum  or  yearly  rent  may  be  directed  to  be 
paid  for  owelty  or  equality  of  partition  by  one  whose  share 
is  too  large  to  others  whose  shares  are  too  small ;  and  that 
when  one  joint  owner  has  put  improvements  on  the  proper- 
ty he  shall  receive  compensation  for  his  improvements,  ei- 
ther by  having  the  part  on  which  the  improvements  are  as- 
signed to  him  at  the  value  of  the  land  without  the  improve- 
ments, or  by  compensation  directed  to  be  made  for  them."  8 

ft  298.  209.     i  Danlell,  Ch.  Prac.  1121-1123. 

2  Danlell.  Ch.  Prac.  1121;   Clarke  v.  Clayton,  2  GUT.  333. 

•  Chancellor  Zabriskle  In  Hall  v.  IMddock,  21  N.  J.  Eq.  314. 


§    300)  PAKTITION.  611 

Sale  of  Property. 

Independent  of  statute,  courts  of  equity  had  no  jurisdic- 
tion to  decree  the  sale  of  the  property  and  a  division  of  the 
proceeds,  unless  all  the  parties  in  interest  who  were  sui  juris 
consented.  If  infants  were  interested,  the  court  could  decree 
a  sale  if  it  was  deemed  to  their  advantage.4  But  without 
such  consent  the  court  had  no  option  but  to  proceed  with 
the  ordinary  mode  of  partition.5  By  statute,  in  England, 
and  many,  if  not  all,  of  the  United  States,  sales  may  be  had 
in  partition  cases  without  the  consent  of  the  co-tenants. 
Under  such  statutes  it  is  within  the  discretion  of  the  court 
to  direct  a  sale  of  the  premises.* 


SAME— WHO  ENTITLED  TO  PARTITION. 

300.  Partition  is  a  matter  of  right,  and  may  be 
compelled  by  any  person  having  legal  or 
equitable  title  and  actual  or  constructive 
possession  of  the  premises. 

A  suit  for  partition  may  be  maintained  by  any  co-tenant, 
whether  seised  in  fee  *  or  for  life,2  and  apparently  even  when 
the  co-owners  are  entitled  only  for  a  term  of  years,3  pro- 
vided they  are  in  actual  or  constructive  possession.*  When 
the  action  is  brought  by  tenants  for  life,  the  decree  of  par- 
tition will  not  bind  the  reversioners  or  remainder-men  ac- 
tually in  existence,  unless  they  have  been  joined  as  parties ;  5 
but,  where  there  are  remainder-men  who  are  not  in  esse,  they 

«  Davis  v.  Turvey,  32  Bear.  554;   Wilkinson  v.  Stuart,  74  Ala.  203. 

B  Wood  v.  Little,  35  Me.  107;  Oodman  v.  Tinkhain,  15  Pick.  (Mass.) 
864;  Lyon  v.  Powell,  78  Ala.  351. 

e  Brooks  v.  Ackerly,  109  N.  Y.  495,  17  N.  E.  412;  Scott  v.  Guern- 
sey, 48  N.  Y.  106. 

§  300.     i  Lord  Brook  v.  Lord  Hartford,  2  P.  Wins.  518. 

2  Gaskell  v.  Gaskell,  6  Sim.  643;  Shaw  v.  Beers,  84  Ind.  528; 
Hawkins  v.  McDougal,  125  Ind.  597,  25  N.  E.  807. 

s  Baring  v.  Nash,  1  Ves.  &  B.  551;  Mussey  v.  Sandborn,  15  Mass. 
155. 

*  Packard  v.  Packard,  16  Pick.  (Mass.)  191,  194;  Savage  v.  Savage, 
19  Or.  112,  23  Pac.  890;  Sullivan  v.  Sullivan,  66  N.  Y.  37. 

o  Freem.  Co-Ten.  §  463.  See,  also,  Black  v.  Washington,  65  Miss. 
60,  3  South.  140;  Savage  v.  Savage,  19  Or.  11L>,  23  Pac.  890. 


612  PARTITION,   DOWER,  AND    BOUNDARIES.  (Ch.   23 

will  be  bound  by  a  decree  made  against  the  tenant  for  life.* 
It  is  well  settled  that,  in  the  absence  of  statutory  provi- 
sions to  the  contrary,  partition  of  an  estate  held  in  remainder 
or  reversion  will  not  be  awarded,  either  at  law  or  in  equity.7 
The  reason  for  this  rule  is  that  tenants  in  reversion  or  re- 
mainder are  not  entitled  to  the  possession,  are  in  no  respect 
inconvenienced  or  damaged  by  the  undivided  possession  held 
by  others,  and  will  not,  therefore,  be  permitted  to  interfere 
with  tenants  in  possession,  or  control  or  affect  the  manner 
in  which  the  estate  of  the  tenant  in  possession  is  enjoyed.* 

In  the  common-law  action  of  partition  che  plaintiff  was 
compelled  to  prove,  not  only  his  own  title,  but  also  that  of 
the  defendant.  But  in  equity  the  plaintiff  was  entitled  to  a 
discovery  of  the  defendant's  title.9  Partition  will  not,  how- 
ever, be  allowed,  either  at  law  or  in  equity,  unless  the  plain- 
tiff co-tenant  can  show  a  good  title,10  and  the  defendant's 
title  must  also  be  shown.11  Unless  the  title  is  undisputed, 
the  bill  will  be  dismissed,  or  retained  until  the  title  has  been 
settled  at  law.12  A  bill  for  partition  cannot  be  made  the 
means  of  trying  a  disputed  title.18  But,  if  only  equitable 
questions  are  involved  in  the  dispute  as  to  the  title,  a  court 
of  equity  may  retain  jurisdiction  over  the  whole  matter.14 

•  Thomas  v.  Gyles,  2  Vern.  233;    Brevoort  v.  Brevoort,  70  N.  Y. 
136;   Baylor's  Lessee  v.  Dejarnette,  13  Grat  (Va.)  152.     In  the  case 
of  Mead  v.  Mitchell,  17  N.  Y.  210,  72  Am.  Dec.  455,  it  was  held  that, 
independent  of  statute,   contingent  remainder-men,   or  persons   to 
take  under  an  executory  devise,  who  may  hereafter  come  into  being, 
are  bound  by  the  judgment,  as  being  virtually  represented  by  the 
parties  to  the  action  in  whom  the  existing  estate  is  vested.    And 
see  Cheesraan  v.  Tliorne,  1  Edw.  Ch.  (N.  Y.)  629. 

T  Evans  v.  Bagshaw,  I*  B.  8  Eq.  469;  Wilkinson  v.  Stuart,  74  Ala. 
198. 

•  Freem.  Co-Ten.  §  440. 

•  Pom.  Eq.  Jur.  f  13N8. 

»o  Wilkinson  v.  Stuart,  74  Ala,  203;  Brendel  v.  Klopp,  G9  Md.  1, 
13  Atl.  589;  Fenton  v.  Steere,  76  Mich.  405,  43  N.  W.  437. 

11  Johnson  v.  Moser,  72  Iowa,  523,  34  N.  W.  314;  Id.,  72  Iowa,  654, 
84  N.  W.  459. 

«  Waite  v.  Bingley,  21  Ch.  Dlv.  674,  681;  Fenton  v.  Judge,  76 
Mich.  405,  43  N.  W.  437;  Nash  v.  Simpson,  78  Me.  142,  3  AtL  53; 
Seymour  v.  RickettR,  21  Neb.  240,  31  N.  W.  781;  Carrigan  v.  Evans, 
81  S.  C.  262.  9  S.  E.  852;  Rich  v.  Bray  (O.  C.)  37  Fed.  273. 

i»  Williams  v.  Wiggand,  53  111.  233;  Smith  v.  Smith,  10  Paige  (S. 
Y.)  470;  Morenhout  v.  Hlguera,  32  Cal.  289. 

14  Warner  v.  Barnes,  Amb.  589;   Hanson  v.  Willard,  12  Me.  147, 


§    301)  PARTITION.  613 


SAME— WHAT  IS  SUBJECT  TO  PARTITION. 

801.  The  power  of  equity  to  decree  partition  ex- 
tends to  all  property  capable  of  division 
within  its  jurisdiction,  whether  real  or  per- 
sonal. 

Equity  has  power  to  decree  partition  of  any  property  that 
can  be  divided.1  The  inconvenience  or  difficulty  in  mak- 
ing the  partition  is  no  objection  to  the  exercise  of  its  juris- 
diction.2 This  principle  sometimes  led  to  absurd  results; 
for,  until  changed  by  modern  statutes,  a  court  of  equity 
would  not  order  a  sale  of  the  premises  and  a  division  of  the 
proceeds  without  the  consent  of  the  co-tenants.3  Thus,  in 
Turner  v.  Morgan,4  there  was  a  decree  for  the  partition  of  a 
single  house.  The  whole  stack  of  chimneys,  all  the  fire- 
places, the  only  staircase,  and  all  the  conveniences  in  the 
yard  were  awarded  to  one  of  the  parties,  and  the  balance  of 
the  house  to  the  other. 

Incorporeal  hereditaments  are  subject  to  partition  in  eq- 
uity only,  and  the  same  is  true  as  to  franchises;  for  in- 
stance, a  ferry  franchise,8  or  the  right  to  a  mineral  spring.* 
All  lands  held  in  common,  whether  by  legal  or  equitable 
title,  wherever  there  is  right  of  possession,  or  at  least  of 
rents  and  profits,  in  the  person  applying  therefor,  may  be 
partitioned.7  The  only  limitation  of  the  power  of  the  court 
to  award  partition  in  all  such  cases  is  that  the  property  must 
be  within  its  territorial  jurisdiction. 

Except  as  prescribed  by  statute,  courts  of  equity  have 
exclusive  jurisdiction  of  suits  for  the  partition  of  personal 

28  Am.  Dec.  1G2;  Steedman  v.  Weeks,  2  Strob.  Eq.  (S.  C.)  145,  49 
Am.  Dec.  GOO;  Cooper  v.  Power  Co.,  42  Iowa,  398. 

§  301.     i  Moore  v.  Darby  (Del.  Ch.)  18  Atl.  TG8. 

2  Warner  v.  Baynes,  Amb.  589;  Hanson  v.  Willard,  12  Me.  147, 
28  Am.  Dec.  162;  Cooper  v.  WTater  Power  Co.,  42  Iowa,  398. 

»  Griffies  v.  Griffies,  11  Wkly.  Rep.  943;  Codnmn  v.  Tinkham,  15 
Pick.  (Mass.)  364;  Lyon  v.  Powell,  78  Ala.  351. 

•  8  Yes.  143. 

•  Rohn  v.  Harris,  130  111.  525,  22  N.  E.  587. 

•  Foreman  v.  Hough,  98  N.  C.  386.  3  S.  E.  912. 

7  Holloway  v.  Holloway,  97  Mo.  628,  11  S.  W.  233,  10  Am.  St  Rep. 
848;  Hayes'  Appeal,  123  Pa.  110,  16  Atl.  600. 


614  PARTITION,  DOWER,  AND    BOUNDARIES.  (Ch.   23 

property ;  *    and  it  is  immaterial  that  plaintiff's  title  is  dis- 
puted,9 or  that  he  is  not  in  possession.10 


SAME— ALLOWANCE  FOB  IMPROVEMENTS. 

302.  A  co-tenant,  out  of  possession,  asking  the  aid 
of  a  court  of  equity  for  partition  against 
a  co-tenant,  -who  has  made  improvements 
upon  the  property,  is  entitled  to  relief  only 
upon  condition  that  any  equities  arising 
because  of  such  improvements  shall  be 
taken  into  account.1 

The  liability  of  one  co-tenant  to  another  for  improve- 
ments made  by  him  is  not  recognized  at  law.  But,  as  was 
said  in  the  case  of  Ford  v.  Knapp :  *  "The  rule  which  takes 
from  one  co-tenant  the  fruit  of  his  thrift  and  enterprise,  and 
adds  it  to  the  unthrift  and  neglect  of  the  other ;  which  loads 
upon  industry  and  ability  the  losses  and  burdens  of  idle- 
ness or  ill  fortune;  which  ties  up  property  from  improve- 
ment, and  looks  contented  upon  rot  and  decay, — is  a  rule 
which  sometimes  the  rigid  and  inelastic  jurisdiction  of  a 
court  of  law  may  adopt  from  necessity,  but  is  without  ex- 
cuse in  a  court  of  equity."  Compensation  for  improve- 
ments is  allowed,  not  upon  the  ground  that  the  improving 
tenant,  who  acts  without  the  agreement  or  consent  of  the 
other  owners,  gains  a  lien  upon  the  property  for  his  ad- 
vances, but  upon  the  proposition  that  one  who  seeks  equity 
must  do  equity,  and  that  the  tenant  out  of  the  actual  occu- 
pation, who  asks  a  court  of  equity  to  award  him  partition, 

•  Freem.  Co-Ten,  f  426;   Godfrey  v.  White,  60  Mich.  443,  27  N.  W. 
693.  1  Am.  St.  Rep.  537;  Smith  v.  Smith.  4  Rand.  (Va.)  102;  Swain  v. 
Kuapp,  32  Minn.  431.  21  N.  W.  414;    Spaulding  v.  Warner,  59  Vt 
640,  11  All.  186. 

•  Godfrey  v.  White,  60  Mich.  443,  27  N.  W.  593,  1  Am.  St  Rep. 
587;    Weeks  r.  Weeks,  40  N.  a  111,  47  Am.  Dec.  358;    Smith  v. 
Dunn,  27  Ala.  316. 

10  Spaulding  v.  Warner,  59  Vt.  646,  11  Atl.  186. 

5  302.  i  Ford  v.  Knapp,  102  N.  Y.  136,  6  N.  E.  283,  55  Am.  Rep. 
T82. 

«  102  N.  Y.  135,  6  N.  E.  283,  55  Am.  Rep.  782,  per  Finch,  J.  And 
Me  Hewlett  v.  Wood,  G2  N.  Y.  76. 


§§    303-304)  ASSIGNMENT   OF   DOWER.  615 

is  entitled  to  relief  only  upon  condition  that  the  equitable 
rights  of  his  co-tenants  shall  be  respected.3  Such  compen- 
sation will  not  be  allowed  unless  the  improvements  were 
made  in  good  faith  for  the  purpose  of  permanently  improv- 
ing the  property.4  The  bare  fact  of  improvements  made 
does  not,  by  itself,  irrespective  of  their  character,  and  of 
the  circumstances  under  which  they  were  made,  and  their 
effect  upon  the  property,  necessarily  give  a  right  to  an  eq- 
uitable allowance.  Every  case  of  the  kind  must  be  de- 
termined upon  its  own  facts  and  surroundings,  and  those 
may  occur  in  which  such  an  allowance  would  be  unjust  and 
inequitable.6  If  the  property  is  sold  in  partition  proceed- 
ings, the  co-tenant  who  has  made  improvements  may  be  al- 
lowed out  of  the  proceeds  of  the  sale,  not  the  cost  of  such 
improvements,  but  such  sum  as,  in  the  opinion  of  the  court, 
they  have  added  to  the  saleable  value  of  the  property.* 

ASSIGNMENT  OF  DOWER. 

803.  Dower  is  the  right  of  a  married  woman  to 
have  assigned  to  her  for  her  enjoyment 
during  her  life,  on  the  death  of  her  hus- 
band, one-third  of  the  lands  and  tenements 
of  which  he  was  seised  during  the  marriage 
In  fee  simple  or  fee  tail,  and  which  his 
issue  by  her  might  have  inherited. 

304.  It  has  been  established  from  an  early  time  in 
England  and  the  United  States,  independ- 
ent of  statutes,  that  the  equitable  juris- 
diction over  the  assignment  of  dower  is 
concurrent  in  its  general  nature  with  that 
of  law. 

»  Taylor  v.  Baldwin,  10  Barb.  (N.  Y.)  582;  Ford  v.  Knapp,  102  N. 
Y.  135,  6  N.  E.  2-83,  55  Am.  Rep.  782. 

*  Hall  v.  Piddock,  21  N.  J.  Eq.  311. 

B  Scott  v.  Guernsey,  48  N.  Y.  106;  Elrod  v.  Keller,  89  Ind.  387; 
Thurston  v.  Dickinson,  2  Rich.  Eq.  (S.  C.)  317,  46  Am.  Dec.  56. 

«  Dean  v.  O'Meara,  47  111.  120;  Moore  v.  Throop,  16  R.  I.  655,  19 
Atl.  321,  7  L.  R.  A.  731;  Killmer  v.  Wuchner,  79  Iowa,  722,  45  N. 
W.  299,  8  L.  R.  A.  289;  Ward  v.  Ward's  Heirs,  40  W.  Va.  611,  21  S. 
E.  74G,  29  L.  R.  A.  449. 


616  PARTITION,  DOWER,   AND    BOUNDARIES.  (Ch.   23 

If  the  heir  neglected  or  refused  to  assign  to  the  widow  her 
dower,  she  had  her  remedy  at  law  by  writ  of  dower,  or  of 
dower  unde  nihil  habet,  and  the  sheriff  was  appointed  to  as- 
sign it.1  Courts  of  equity  began  to  assume  jurisdiction  over 
proceedings  for  dower  as  early  as  the  reign  of  Queen  Eliz- 
abeth; at  the  outset  for  the  purpose  of  removing  impedi- 
ments in  the  way  of  recovery  at  law,  and  as  ancillary  to 
proceedings  at  law.  The  jurisdiction  gradually  developed 
until  it  could  afford  complete  relief  between  the  parties. 
Among  the  advantages  which  aided  in  the  development  of 
the  equitable  jurisdiction  were :  because  a  partition  in  the 
case  of  undivided  interests  could  be  decreed  and  an  account 
could  be  taken,2  fraudulent  conveyances  could  be  set  aside,8 
and  antagonistic  claims  to  the  subject-matter  could  be  de- 
termined without  multiplicity  of  suit.4 

If  the  estates  in  which  the  widow  seeks  her  dower  are 
equitable,  the  jurisdiction  of  equity  is  exclusive, — as,  where 
the  husband's  estate  was  an  equity  in  redemption,  the  widow 
may  proceed  in  equity  to  compel  the  mortgagee  to  redeem ;  8 
and  "where  the  lands  of  the  husband  were  occupied  by  him 
under  a  contract  of  purchase,  whether  wholly  paid  for  or 
not,  the  widow  may  proceed  in  equity  for  an  assignment  of 
her  dower."  But,  in  the  exercise  of  its  jurisdiction,  con- 
currently with  law,  a  court  of  chancery  will  apply  the  same 
principles  as  would  be  applied  by  a  court  of  law.7  In  most 
of  the  states  the  procedure  as  to  the  assignment  of  dower  is 
now  regulated  by  statutes,  and  in  many  of  them  the  equita- 
ble jurisdiction  is  abrogated.* 

{§  303,  304.     i  Adams,  Eq.  p.  234. 

«  Nye  v.  Patterson,  35  Mich.  413;  Hill  v.  Gregory,  56  Miss.  341; 
Herbert  v.  Wren,  7  Cranch,  370,  3  L.  Ed.  374. 

»  Swalne  v.  Ferine,  5  Johns.  Ch.  (N.  Y.)  482,  9  Am.  Dec.  318: 
Jones  v.  Jones,  71  WIs.  514,  38  N.  W.  88;  Jones  v.  Van  Doren,  130 
U.  S.  684,  9  Sup.  Ct  (585.  32  L.  Ed,  1077. 

•  Pom.   Eq.  Jur.  $  1282. 

•  Dawson  v.  Bank  of  Whltehaven,  4  Ch.  Div.  639;    Farwell  r. 
Cotting,  8  Allen  (Mass.)  211;   Chlswell  v.  Morris,  14  N.  J.  Eq.  101. 

«  Thompson  v.  Cochran,  7  Humph.  (Term.)  72,  46  Am.  Dec.  68; 
Daniel  v.  L*itch,  13  Grat  (Va.)  195;  Young  v.  Young,  45  N.  J.  Eq. 
27,  16  AtL  921. 

T  Drost  v.  Hall,  52  N.  J.  Eq.  68,  28  Ati.  81. 

•  Scrlb.  Dower  (2d  Ed.)  p.  414.    Equity  Jurisdiction  is  abrogated 
In  Connecticut,  Delaware,  Florida,  Georgia,  Maine,  Massachusetts. 
Michigan,  Minnesota,  New  Hampshire,  Oregon,  South  Carolina,  and 
Wisconsin.    In  Arkansas  the  circuit  court  In  chancery  has  concurrent 
Jurisdiction  with  the  probate  court.     Ex  parte  Milliard,  50  Ark.  34, 
6  8.  W.  326. 


§   305)  ESTABLISHMENT   OF   BOUNDARIES.  617 


ESTABLISHMENT  OF  BOUNDABIES. 

305.  The  jurisdiction  of  equity  as  to  the  establish- 
ment of  disputed  boundaries  is  limited  to 
those  cases 

(a)  Where  there  is  some  peculiar  equity  superin- 

duced by  the  acts  of  the  parties; 

(b)  Where  there  is  a  bona  fide  dispute  as  to  the 

ownership  of  the  soil;  and 

(c)  Where  some  portion  of  the  premises  is  in  the 

defendant's  possession.1 

The  jurisdiction  of  equity  to  settle  disputed  boundaries  is 
limited  by  the  rule  that  equity  has  no  jurisdiction  where 
there  is  an  adequate  remedy  at  law.2  The  plaintiff  must 
show  clearly  that,  without  the  assistance  of  the  court,  the 
boundaries  could  not  be  found ;  8  or,  failing  the  assistance  of 
equity,  that  a  multiplicity  of  actions  would  be  occasioned.4 
The  defendant's  fraud  in  obliterating  and  confusing  the 
boundaries  will  confer  jurisdiction  on  the  court.5  As  a  rule, 
the  location  of  disputed  boundaries  may  be  settled  in  the 
legal  action  of  ejectment,  and  statutes  in  many  of  the  states 
have  prescribed  a  special  procedure.  The  equity  jurisdic- 
tion on  this  branch  seems  to  be  nearly  obsolete  in  the  United 
States. 

$  305.     i  Wake  v.  Conyers,  1  Eden,  331,  2  White  &  T.  Lead.  Cas. 
Eq.  (4th  Am.  Ed.)  850. 
2  Perry  v.  Pratt,  31  Conn.  433. 
«  Miller  v.  Warmington,  1  Jac.  &  W.  491. 

*  Bouverie  y.  Prentice,  1  Brown,  Ch.  200;  Perry  v.  Pratt,  31  Conn. 
433. 

•  Bute  T.  Glamorganshire  Canal  Co.,  1  PhiL  Ch.  681;  Merrlman  v. 
Russell.  55  N.  C.  470. 


618  REFORMATION,  CANCELLATION,  AND    TITLE.         (Ch.   24 

CHAPTER  XXIV. 

REFORMATION,  CANCELLATION,  AND  CLOUD  ON  TITLE. 

306.  Reformation. 

307.  Mistake  or  Fraud. 

808-309.  By  and  against  Whom  Reformation  may  be  Had. 

810-311.  Evidence— Statute  of  Frauds. 

312.  Cancellation. 

313.  Cloud  on  Title. 

814.  When  Suit  may  be  Maintained. 

REPOEMATION. 

806.  Equity  will  reform  a  written  contract  or  other 
instrument  inter  vivos,  •where,  through  mu- 
tual mistake,  or  the  mistake  of  one  of  the 
parties,  induced  or  accompanied  by  the 
fraud  of  the  other,  it  does  not,  as  written, 
truly  express  the  agreement  of  the  parties. 

Courts  of  common  law  could  declare  a  written  instrument 
cither  valid  or  invalid.  If  invalid,  they  could  set  it  aside 
altogether;  and,  if  valid,  they  could  construe  and  enforce  it 
as  written.  But  they  possessed  no  power  of  rectifying  it  to 
conform  to  the  intention  of  the  parties.  Hence  arose  the 
equitable  jurisdiction  of  reformation.  Equity,  which  always 
regards  the  intention  of  the  parties,  rather  than  the  form  in 
which  they  have  expressed  it,  did  not  scruple,  from  the  ear- 
liest times,  to  rectify  written  contracts  and  other  instruments 
inter  vivos  to  make  them  correspond  with  the  real  meaning 
and  intention  of  the  parties.1  The  reason  for  the  exercise 
of  this  jurisdiction  is  plain.  To  compel  the  parties  to  abide 
by  the  terms  of  an  instrument  which,  through  mistake  or 
fraud,  does  not  express  their  real  intention  would  result  in 

i  306.  *  One  of  the  earliest  cases  on  record  is  thus  stated  in 
Bleverhasset  v.  Fuller,  Toth.  131  (37  Ellz.):  A  lease  was  to  be  made 
excepting  the  woods,  but  the  clerk  drew  the  deed  so  that  it  made 
DO  mention  of  woods,  though  It  did  refer  to  some  exception;  and, 
on  the  lessee  commencing  to  cut,  he  was  enjoined  from  so  doiug. 


§   307)  REFORMATION.  619 

carrying  into  operation  such  mistake  or  fraud;  and  to  set 
aside  such  an  instrument  might  deprive  one  of  such  parties 
of  the  benefits  to  which  he  is  justly  entitled.  This  jurisdic- 
tion is  exercised  in  a  great  variety  of  cases ;  most  frequently, 
perhaps,  in  cases  of  deeds,2  mortgages,8  and  other  convey- 
ances of  real  property,  and  contracts  to  convey  such  prop- 
erty.4 Insurance  policies,  which,  through  fraud  or  mistake, 
do  not  contain  the  terms  of  the  contracts  entered  into  be- 
tween the  parties,  are  frequently  reformed  to  accord  with 
the  intention  of  the  parties ; B  and  this  may  be  done  in  the 
case  of  a  fire  policy  after  a  loss  has  occurred.8 


SAME— MISTAKE  OR  FRAUD. 

807.  Equity  -will  not  reform  a  -written  instrument, 
unless 

(a)  The  mistake  is  one  made  by  both  parties   to 

the  agreement,   so  that  the  intentions  of 
neither  are  expressed  in  it;  or 

(b)  There  is  a  mistake    of  one   party,   by  which 

his    intentions   have    failed  of  correct   ex- 

«  Parker  v.  Parker,  88  Ala.  362,  6  South.  740,  16  Am.  St.  Rep.  52; 
Adams  v.  Wheeler,  122  Ind.  251,  23  N.  E.  760;  Conlln  v.  Masecar,  80 
Mich.  139,  45  N.  W.  67;  Rice  v.  Kelset,  42  Minn.  511,  44  N.  W.  535; 
Haack  v.  Weicken,  118  N.  Y.  67,  23  N.  E.  133;  Hollenback's  Appeal, 
121  Pa.  322,  15  Atl.  616;  Grossbach  v.  Brown,  72  Wls.  458,  40  X.  W. 
494;  Brown  v.  Coal  Co.,  28  C.  C.  A.  567,  84  Fed.  930;  Green  v.  Stone, 
54  N.  .T.  Eq.  387,  34  Atl.  1099,  55  Am.  St.  Rep.  577. 

s  Allen  v.  Elder,  76  Ga.  674,  2  Am.  St  Rep,  63;  Whipperman  v. 
Dunn,.  124  Ind.  349,  24  N.  E.  166,  1045;  Wait  v.  Axford,  63  Mich. 
227,  29  N.  W.  693;  Thomas  v.  Harmon,  122  X.  Y.  84,  25  X.  E.  257. 

<  Olson  v.  Erickson,  42  Minn.  440,  44  X.  W.  317;  Fishack  v.  Ball, 
34  W.  Va.  644,  12  S.  E.  856. 

o  Western  Assur.  Co.  v.  Ward,  21  C.  C.  A.  378,  75  Fed.  338;  'Fink 
v.  Insurance  Co.  (C.  C.)  24  Fed.  318;  German  Fire  Ins.  Co.  v.  Gueck, 
130  111.  345,  23  X.  E.  112,  6  L.  R.  A.  835;  Balen  v.  Insurance  Co.,  67 
Mich.  179,  34  X.  W.  654;  Bryce  v.  Insurance  Co.,  55  X.  Y.  240,  14 
Am.  Rep.  249;  Mackenzie  v.  Coulson,  L.  R.  8  Eq.  368,  3  Keener,  Eq. 
Cas.  267. 

«  Continental  Ins.  Co,  v.  Ruckman,  127  111.  364,  20  X.  E.  77,  11 
Am.  St.  Rep.  121;  Snell  v.  Insurance  Co.,  98  U.  S.  85,  25  L.  Ed.  52; 
Esch  v.  Insurance  Co.,  78  Iowa,  334,  43  X.  W.  229,  16  Am.  St  Rep. 
443;  Hill  v.  Insurance  Co.,  39  X.  J.  Eq.  66. 


620  REFORMATION,  CAJ<CELLATION,  AND   TITLE.         (Ch.  24 

pression,  and  there  is  fraud  in  the  other 
party  in  taking  advantage  of  that  mistake, 
and  obtaining  a  contract  -with  knowledge 
that  the  one  dealing  -with  him  is  in  error 
in  regard  to  what  are  its  terms.1 

The  authorities  are  unanimous  that,  to  justify  a  reforma- 
tion of  a  written  instrument  on  the  ground  of  mistake,  un- 
mixed with  fraud,  the  mistake  must  be  mutual  or  common 
to  both  the  parties ;  and  the  mistake  must  be  in  regard  to  a 
matter  which  is  material  to  the  contract.2  The  phrase  "mu- 
tual mistake,"  as  used  in  equity,  means  a  mistake  common 
to  all  the  parties  to  a  written  contract  or  instrument,  and  it 
usually  relates  to  a  mistake  concerning  the  contents  or  the 
legal  effect  of  the  contract  or  instrument.8  There  are  some 
cases  which  hold  that  a  reformation  cannot  be  had  unless 
the  mistake  is  one  of  fact,  rather  than  of  law ;  *  but  in  many 
other  cases  the  relief  has  been  granted  where  the  mistake 
is  one  as  to  the  legal  effect  of  the  instrument,  when  it  does 
not  fulfill  or  violates  the  manifest  intention  of  the  parties.6 
The  conflict  of  authority  on  this  question  is  more  apparent 
than  real.  If  the  contract  contains  the  real  agreement  be- 
tween the  parties,  it  will  require  more  than  a  mistake  as  to 
the  legal  effects  of  the  provisions  of  the  contract  to  war- 
rant the  interposition  of  equity.6  The  question  in  any  case 

§  307.  i  Bryce  v.  Insurance  Co.,  55  N.  Y.  240,  243,  14  Am.  Rep. 
249,  per  Folger,  J. 

2  Purvines  v.  Harrison,  151  111.  219,  37  N.  E.  705;  Green  v.  Stone, 
54  N.  J.  Eq.  387,  34  Atl.  1099,  55  Am.  St.  Rep.  577;  Clark  v.  Higgins, 
132  Mass.  586,  589;  Chute  v.  Qulncy,  156  Mass.  189,  30  N.  E.  550; 
Bigelow  v.  Wilson,  99  Iowa,  456,  68  N.  W.  798;  Carskaddon  v.  City 
of  South  Bend,  141  Ind.  596,  39  N.  E.  667,  41  N.  E.  1;  Burns  v.  Cas- 
key,  100  Mich.  94,  58  N.  W.  642;  Garrard  v.  Frankel,  30  Beav.  445; 
8  Keener,  Eq.  Cas.  261;  Welles  v.  Yates,  44  N.  Y.  525,  3  Keener,  Eq. 
Cas.  272. 

«  Page  v.  Hlgglns.  150  Mass.  27,  31,  22  N.  E.  63.  5  I*  R.  A.  152. 

«  Fowler  Y.  Black,  136  111.  363,  26  N.  E.  596,  11  L.  R.  A.  670,  3 
Keener,  Eq.  Cas.  100;  Purvlnes  v.  Harrison,  151  111.  219,  224,  37  N. 
E.  705;  Burns  v.  Caskey,  100  Mich.  94,  58  N.  W.  642. 

»  Neiniuger  v.  State,  50  Ohio  St.  394,  34  N.  E.  633,  3  Keener,  Eq. 
CMS.  ::r>8;  Larklns  v.  Biddle,  21  Ala.  252;  Reed  v.  Root,  59  Iowa,  359, 
13  N.  W.  323;  Benson  v.  Markoe,  37  Minn.  30,  33  N.  W.  38,  5  Am.  St. 
Rep.  816;  Walden  v.  Skinner,  101  U.  S.  577,  583,  25  L.  Ed.  963. 

•  Park  Bros.  &  Co.  v.  Blodgett  &  Clapp  Co.,  64  Conn.  28,  29  AtL 


§§    308-309)  REFORMATION.  621 

will  be  as  to  whether  the  contract  actually  expresses  the 
intent  of  the  parties.  If  it  does  not,  because  of  a  mutual 
mistake,  either  of  fact  or  law,  the  contract  may  be  rectified. 
Equity  will  relieve  against  the  mistake  of  one  party,  ei- 
ther of  law  or  of  fact,  where  it  is  produced  by  misleading 
statements  or  representations  of  the  other  party  to  the  con- 
tract.7 The  subject  of  fraud  has  been  more  fully  treated  in 
another  part  of  this  work,  to  which  reference  is  made  for 
the  purpose  of  determining  what  acts  are  fraudulent.8 

SAME— BY     AND     AGAINST    WHOM     REFORMATION 
MAY  BE  HAD. 

308.  The  relief  by  reformation  of  a  written  instru- 

ment -will  be  granted  to  the  original  par- 
ties thereto,  and  to  all  those  claiming  under 
or  through  them  in  privity.1 

309.  Such  instruments   will    be   reformed   against 

creditors,  and  purchasers  having  actual  or 
constructive  notice  of  the  mistake,  but  not 
as  against  subsequent  purchasers  for  value, 
and  without  notice.3 

In  cases  of  mistake,  equity  may  interfere,  not  only  as  be- 
tween the  parties  themselves,  but  also  in  favor  of  those  claim- 
ing under  or  through  them  in  privity ;  such  as  personal  rep- 
resentatives, heirs,  etc.8  Thus,  a  mistake  in  a  mortgage 

133,  3  Keener,  Eq.  Gas.  150;  Moore  v.  Tate,  114  Ala.  582,  21  South. 
820f  Walden  v.  Skinner,  101  U.  S.  577,  25  L.  Ed.  963;  Elliott  v.  Sack- 
ett,  108  U.  S.  132,  141,  2  Sup.  Ct  375,  27  L.  Ed.  678. 

7  Bales  v.  Hunt,  77  Ind.  355;  Bush  v.  Merriman,  87  Mich.  260,  49 
N.  W.  567;  Kyle  v.  Fehley,  81  Wis.  67,  51  N.  W.  257,  29  Am.  St.  Rep. 
866,  3  Keener,  Eq.  Cas.  131;  Snell  v.  Insurance  Co.,  98  U.  S.  85,  91, 
25  L.  Ed.  52,  3  Keener,  Eq.  Cas.  80. 

»  Ante,  p.  283. 

§§  308,  309.  »  Kelster  y.  Myers,  115  Ind.  312,  314,  17  N.  E.  161,  3 
Keener,  Eq.  Cas.  314;  East  v.  Peden,  108  Ind.  92,  8  N.  E.  722. 

2  Hyland  v.  Hyland,  19  Or.  51,  23  Pac.  811;   Pence  v.  Armstrong, 
95  Ind.  191;   Carver  v.  Lassallette,  57  Wis.  232,  15  N.  W.  162. 

3  Morris  v.  Stern,  80  Ind.  227;   Whitmore  v.  Hay,  85  Wis.  240,  55 
N.  W.  708,  39  Am.  St  Eep.  826;   Hutsell  v.  Crewse,  138  Mo.  1,  39  S. 
W.  449. 


022  REFORMATION,  CANCELLATION,   AND   TITLE.         (CL.    24 

given  by  a  decedent  may  be  reformed  against  his  widow  and 
heirs  or  devisees  and  administrator  or  executor.*  The  re- 
lief cannot  be  had  to  the  injury  of  innocent  third  persons, 
such  as  mortgagees,  bona  fide  purchasers  without  notice,  and 
others  who  have  acquired  intervening  or  vested  rights,  and 
who  cannot  be  placed  in  statu  quo.8  A  voluntary  convey- 
ance of  land  by  a  father  to  his  adult  son,  founded  on  natural 
love  and  affection,  and  made  without  any  prior  consultation 
or  agreement  with  the  grantee,  as  a  testamentary  disposi- 
tion of  the  property,  cannot,  after  the  death  of  the  grantor, 
and  as  against  his  other  heirs,  be  reformed  in  equity,  and 
made  to  describe  the  land  which  the  grantor  intended,  but, 
by  mistake,  failed  to  convey.* 


SAME— EVIDENCE— STATUTE  OP  FRAUDS. 

310.  A  written  instrument  will  not  be  reformed  for 

mistake  or  fraud  unless  clear,  positive,  and 
convincing  evidence  be  produced  showing 
the  existence  of  such  mistake  or  fraud. 

311.  Parol  evidence  is  admissible  for  such  purpose, 

although  the  instrument  is  one  which  is  re- 
quired by  the  statute  of  frauds  to  be  in 
writing. 

The  reformation  of  a  written  contract,  which  is  the  high- 
est and  most  solemn  evidence  of  the  agreement  of  the  par- 
ties, will  not  be  granted,  unless  the  proof  of  mistake  or  fraua 
is  clear  and  definite ; 1  and  a  complainant  who  asks  that  a 
part  of  the  stipulation  be  permitted  to  stand,  and  a  part  to 
be  altered,  or  stricken  out,  must  produce  stronger  proof  than 
is  required  from  one  who  disowns  the  contract  in  its  entire- 

«  Wilson  v.  Stewart,  63  Ind.  294. 

»  Teuoc  v.  Armstrong,  95  Ind.  191;  Ingles  y.  Merrlman,  96  Wls. 
400,  71  N.  W.  368;  Toll  v.  Davenport,  74  Mich.  386,  42  N.  W.  63; 
Way  v.  Roth,  159  111.  1<£,  42  N.  E.  321. 

«  Willey  v.  Hodge,  104  Wls.  81,  80  N.  W.  75. 

§5  310.  311.  i  Henkle  v.  Assurance  Co.,  1  Ves.  Sr.  318;  Turner  v. 
Shaw.  96  Mo.  22,  8  S.  W.  897;  Snble  v.  Maloney,  48  Wls.  331.  4  N. 
W.  479;  Ford  v.  Joyce,  78  N.  Y.  618;  Muller  v.  Uhumau,  62  Ga.  332. 


§§    o 10-0 11)  '  REFORMATION.  623 

ty  on  the  ground  of  fraud  or  undue  influence.8  An  instru- 
ment will  not  be  reformed  on  the  ground  of  mistake  unless 
the  evidence  shows  clearly  and  satisfactorily,  not  only  that 
the  writing  does  not  truly  express  the  intention  of  the  par- 
ties, but  also  what  was  intended  to  be  expressed,  or  what 
the  actual  contract  was.8  The  courts  have  stated  the  rule 
as  to  the  degree  of  evidence  required  for  the  reformation  of 
a  contract  in  many  different  ways;  but,  however  the  rule 
may  be  expressed,  the  evidence  must  be  sufficiently  cogent  to 
thoroughly  satisfy  the  mind  of  the  court  that  fraud  has  been 
committed,  or  that  a  mistake  has  been  made.4  A  court  of 
equity,  in  correcting  an  agreement  of  parties  upon  the 
ground  of  mistake,  proceeds  upon  the  theory  that  it  does 
not  express  their  real  sense,  and  it  is  most  evident  that  the 
mutuality  of  the  mistake  must  be  made  out,  and  the  fact  of 
a  different  agreement  having  been  intended  by  both  estab- 
lished, by  evidence  which  is  clear  and  convincing." 

Statute  of  Frauds. 

There  are  cases  which  hold  that  an  executory  contract, 
required  by  the  statute  of  frauds  to  be  in  writing,  can  only 
be  reformed  where  the  mistake  of  the  parties  consists  in  hav- 
ing included  in  the  contract  more  of  the  subject-matter  than 
they  intended.  In  such  case  parol  testimony  may  be  ad- 
mitted for  the  purpose  of  eliminating  the  surplus  subject- 

»  Harding  v.  Long,  103  N.  O.  1,  9  S.  E.  445. 

«  Guilnmrtin  v.  Urquhart,  82  Ala.  570,  1  South.  897;  Bishop  v.  In- 
surance Co.,  49  Conn.  167. 

4  Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  417,  435,  12  Sup. 
Ct.  239.  35  L.  Ed.  1063.  Evidence  must  be  "clear,  exact,  and  sa$s- 
factory,"  Sawyer  v.  Hovey,  3  Allen  (Mass.)  331,  81  Am.  Dec.  659: 
must  be  ""clear,  precise,  and  indubitable,"  Breneiser  v.  Davis,  141 
Pa.  85,  21  Atl.  508;  Boyertown  Nat.  Bank  v.  Hartman,  147  Pa.  558, 
23  Atl.  842,  30  Am.  St.  Rep.  759;  must  establish  the  mistake  beyond 
a  reasonable  doubt  Hupsch  v.  Resch,  45  N.  J.  Eq.  657,  662,  18  Atl. 
372;  Stockbridge  Iron  Co.  v.  Iron  Co.,  102  Mass.  45,  3  Keener,  Eq. 
Gas.  54,  397;  but  It  has  also  been  held  that  it  is  sufficient  to  estab- 
lish the  fact  by  a  clear  preponderance  of  evidence,  without  estab- 
lishing It  beyond  a  reasonable  doubt,  Southard  v.  Curley,  134  N. 
Y.  148,  31  N.  E.  330,  16  L.  R.  A.  561,  30  Am.  St.  Rep.  642,  3  Keener, 
Eq.  Cas.  460.  And  see,  also,  Christopher  &  T.  St.  R.  Co.  v.  Railway 
Co.,  149  N.  Y.  51,  43  N.  E.  538. 

B  Allison  Bros.  Co.  T.  Allison,  144  N.  Y.  21,  30,  38  N.  E.  956,  per 
Gray,  J. 


624  REFORMATION,  CANCELLATION,   AND    TITLE.          (Ch.    24 

matter  from  the  operation  of  the  contract.9  The  reason  for 
limiting  the  reformation  of  a  written  instrument  to  cases 
where  it  is  sought  to  strike  from  an  instrument  matter  which 
the  parties  did  not  intend  to  insert  is  that  the  admission  of 
parol  testimony  in  such  cases  is  not  in  conflict  with  the  stat- 
ute of  frauds,  since  it  is  not  attempted  to  make  a  parol  con- 
tract required  by  the  statute  to  be  in  writing,  but  simply  re- 
stricts a  written  contract  already  made.7  But  the  weight 
of  authority  seems  to  be  against  the  drawing  of  a  distinction 
between  cases  where  the  relief  sought  is  for  the  purpose  of 
restricting  the  operation  of  a  contract  and  those  where  it  is 
sought  to  enlarge  such  operation.8  The  general  rule  is  that 
the  statute  of  frauds  does  not  prevent  the  reformation  of  a 
contract  thereby  required  to  be  in  writing  by  the  admission 
of  parol  testimony  for  the  purpose  of  enlarging  or  restrict- 
ing its  terms  or  subject-matter."  "Whether  the  parol  evi- 
dence offered  to  correct  the  writing  on  account  of  fraud  or 
mistake  shows  the  verbal  contract  to  be  broader  than  the 
written  instrument,  covering  more  or  a  different  subject- 
matter  or  enlarging  the  terms,  or  is  narrower  than  the  writ- 
ten instrument,  either  in  the  terms  or  subject-matter  of  the 
contract,  courts  of  equity  will  grant  relief  by  reforming  the 
contract  so  as  to  prevent  fraud  or  mistake.  The  statute  of 
frauds,  in  granting  such  relief,  is  not  violated  but  'is  uplift- 
ed,' that  it  may  not  perpetuate  the  fraud  that  the  legislature 
designed  it  to  prevent."  " 

«  Glass  v.  Hulbert,  102  Mass.  24,  3  Am.  Rep.  418,  3  Keener,  Eq. 
Cas.  327;  Climer  v.  Hovey,  15  Mich.  18;   Elder  v.  Elder,  10  Me.  80, 
25  Am.  Dec.  205;  Osborn  v.  Phelps,  10  Conn.  63,  48  Am.  Dec.  133. 
-i  Glass  v.  Hulbert,  102  Mass.  24,  3  Am.  Rep.  418,  3  Keener,  Eq. 
Cas.  327. 

«  Beardsley  v.  Duntley,  69  N.  Y.  577,  582,  584,  3  Keener,  Eq.  Cas. 
844. 

•  Noel's  Ex'r  r.  Gill,  84  Ky.  241,  249,  1  S.  W.  428,  3  Keener,  Eq. 
Cas.  347;  Judson  v.  Miller,  106  Mich.  140,  63  N.  W.  965;  McDonald 
v.  Yungbluth  (O.  C.)  40  Fed.  836;  Flnucan  v.  Kendlg,  109  111.  198; 
Morrison  v.  Collier,  79  Ind.  417. 

10  Noel's  Ex'r  v.  GUI,  84  Ky.  241,  248,  1  8.  W.  428,  »  Keener,  Eq. 
Cas.  847,  per  Bennett,  J. 


§    o!2)  CANCELLATION.  023 


CANCELLATION. 

312.  Equity  will  cancel  a  written  instrument 

(a)  If,  though  utterly  void,  it  is  apparently   valid 

on  its  face. 

(b)  If  it  is  voidable   on  the  ground  of  fraud    or 

mistake,  as  heretofore  explained. 

Courts  of  common  law  would,  of  course,  not  enforce  a 
void  or  voidable  instrument ;  but  they  "pursued  a  policy  of 
masterly  inactivity,"  and  would  grant  a  party  executing  it 
no  affirmative  relief  until  a  suit  was  brought  thereon.  Equi- 
ty, however,  acting  on  the  ground  that  such  an  instrument 
might  be  vexatiously  used,  when,  by  lapse  of  time,  the  evi- 
dence of  its  void  or  voidable  character  might  be  lost,  took 
upon  itself  to  order  its  cancellation.1 

(1)  With  respect  to  an  instrument  absolutely  void,  the  rule 
is  that,  where  the  illegality  is  apparent  on  its  face,  so  that  its 
nullity  can  admit  of  no  doubt,  equity  will  not  interfere.2 
Such  a  'document  is  plainly  innocuous.     No  lapse  of  time 
can  add  to  its  power  so  as  to  render  it  dangerous.     Illustra- 
tions are  supplied  by  instruments  which,  on  their  face,  dis- 
close an  illegal  consideration,  or  the  fact  that  they  have  been 
fully  satisfied.8     But  where  the  instrument,  though  in  fact 
void,  has  the  appearance  of  validity,  the  case  is  otherwise. 
Then  there  exists  a  material  danger,  against  which  protec- 
tion may  reasonably  be  sought.     Thus,  forged  instruments 
have  been  ordered  canceled.4  . 

(2)  As  to  voidable  instruments,  it  is  not  now  necessary 
to  repeat  what  has  already  been  said  in  the  chapters  on 
"Fraud"  and  "Mistake"  respecting  the  circumstances  which 
will  give  a  person  the  option  of  avoiding  his  own  acts ;   and 

%  312.     i  Underh.  Eq.  p.  215. 

apeirsoll  v.  Elliott,  6  Pet.  95,  8  L.  Ed.  332;  Town  of  Venice  v. 
Woodruff,  62  N.  Y.  462,  468,  20  Am.  Rep.  495;  Town  of  Springport 
v.  Bank,  75  N.  Y.  397,  402. 

a  Simpson  v.  Lord  Howden,  3  Mylne  &  C.  97;  Smyth  v.  Griffin,  13 
Sim.  245;  Threlfall  v.  Lunt,  7  Sim.  627. 

*Peake  v.  Highfield,  1  Russ.  559;  Cooper  v.  Vesey,  20  Ch.  Div. 
612;  Dunn  v.  Miller,  96  Mo.  324,  9  S.  W.  640;  Sharon  y.  Terry  (C. 
O.)  36  Fed.  337,  1  L.  R.  A.  572. 

EATON.Eq.— 40 


626  REFORMATION,  CANCELLATION,  AND    TITLE.        (Ch.   24 

the  student  is  referred  to  these  subjects,  and  to  what  has 
been  said  under  the  maxim,  "He  who  comes  into  equity 
must  come  with  clean  hands,"  for  information  respecting  the 
right  of  cancellation  or  rescission  in  such  cases.* 


CLOUD  ON    TITLE. 

813.  Whenever  a  deed  or  other  instrument  exists 
•which  may  be  vexatiously  or  injuriously 
used  against  a  party  after  the  evidence  to 
impeach  or  invalidate  it  is  lost,  or  which 
may  throw  a  cloud  or  suspicion  over  his 
title  or  interest,  and  he  cannot  immediately 
protect  or  maintain  his  right  by  any  course 
of  proceedings  at  law,  a  court  of  equity 
will  afford  relief  by  directing  the  instru- 
ment to  be  delivered  up  and  canceled,  or 
by  making  any  other  decree  which  justice 
and  the  rights  of  the  party  may  require.1 

Courts  of  chancery  have  always  had  jurisdiction  to  re- 
move clouds  from  title.  Modern  statutes  in  many  states 
have  provided  a  remedy  at  law  for  the  trying  of  title  to  land, 
which  have  rendered  a  resort  to  equity  in  such  cases  much 
less  frequent.2  A  suit  to  remove  a  cloud  from  a  title,  like  a 
suit  for  the  cancellation  of  documents,  depends  on  the  prin- 
ciple of  quia  timet ;  that  is,  the  deed  or  instrument  consti- 
tuting the  cloud  may  be  used  vexatiously,  when,  by  lapse  of 
time,  the  evidence  of  its  void  or  voidable  character  may  be 
lost.8 

What  Constitutes  Cloud  on  Title. 

A  cloud  upon  a  title  is  but  an  apparent  defect  in  it.  If 
the  title,  sole  and  absolute  in  fee,  is  really  in  the  person 
moving  against  the  cloud,  the  density  of  the  cloud  can  make 

•  See  ante,  p.  09. 

|  313.     i  Story,  Eq.  Jur.  f  694;   Martin  v.  Graves,  5  Allen  (Mass.) 
601;  Dull's  Appeal,  113  Pa.  510,  6  Atl.  540,  1  Keener,  Eq.  Gas.  348. 
a  Shrppard  v.  Nixon.  43  N.  J.  Eq.  t>27,  13  Atl.  617. 

•  1  Foubl.  Eq.  book  1,  c.  1,  §  8,  note. 


§   314)  CLOUD   ON    TITLE.  CJ7 

no  difference  in  the  right  to  have  it  removed.  Anything  of 
this  kind  that  has  a  tendency,  even  in  a  slight  degree,  to 
cast  doubt  upon  the  owner's  title,  and  to  stand  in  the  way  of 
a  full  and  free  exercise  of  his  ownership,  is  a  cloud  upon  his 
title.4  To  constitute  a  cloud  which  the  court  will  interfere 
to  remove,  it  must  appear  that  it  is  prejudicial,  which  in- 
volves the  existence  of  some  reason  to  apprehend  injury,  or 
that  it  is  set  on  foot  and  relied  upon  to  the  prejudice  of  the 
title.  Where  the  so-called  cloud  or  adverse  claim  has  not 
even  the  appearance  of  validity  or  substance, — as  where  it 
appears  on  the  face  of  the  documents  or  proceedings  upon 
which  the  alleged  claimant  must  rely,  and  which  he  must 
produce,  that  there  is  no  legal  validity  in  the  claim, — there 
is  no  ground  for  invoking  the  aid  of  a  court,  for  there  is  no 
injury,  and  no  ground  for  apprehension  of  injury.5  The 
general  rule  to  be  deduced  from  the  authorities  is  that,  if 
the  title  against  which  relief  is  prayed  is  of  such  a  character 
that,  if  asserted  by  action,  and  put  in  evidence,  it  would  drive 
the  true  owner  of  the  property  to  the  production  of  his  own 
title  in  order  to  establish  a  defense,  it  constitutes  a  cloud 
which  he  has  a  right  to  have  removed.* 


SAME— WHEN  SUIT   MAT  BE   MAINTAINED. 

314.  Independent  of  statute  or  equitable  circum- 
stances, a  suit  to  remove  a  cloud  on  a  title 
cannot  be  maintained  unless  the  plaintiff 
has  a  legal  title  to  the  property,  and  is  in 
possession  thereof. 

As  has  been  said  in  a  leading  New  York  case  on  this  sub- 
ject :  "We  have  been  unable  to  find  any  case  where  a  party 
out  of  possession  has  been  allowed  to  sustain  an  action  quia 

*  Whitney  v.  City  of  Port  Huron,  88  Mich.  269,  272,  50  N.  W.  316, 
26  Am.  St.  Rep.  291. 

e  Crooke  v.  Andrews,  40  N.  Y.  547;  Hatch  v.  City  of  Buffalo,  38 
N.  Y.  276;  Ward  v.  Dewey,  16  N.  Y.  519;  Moores  v.  Townshend,  102 
N.  Y.  387,  392,  7  N.  E.  401,  1  Keener,  Eq.  Cas.  355;  Briggs  v.  John- 
son, 71  Me.  235. 

•»  Lick  v.  Ray,  43  Cal.  83,  88;  Sloan  v.  Sloan.  25  Fla,  53,  6  South, 
603;  Maloney  Y.  Finnegan,  38  Minn.  70,  35  N.  W.  723. 


G2S  REFORMATION,  CANCELLATION,  AND   TITLE.         (Ch.   24 

timet  to  remove  a  cloud  upon  title,  except  when  it  was  spe- 
cially authorized  by  statute,  or  when  special  circumstances 
existed  affording  grounds  for  equitable  jurisdiction,  aside 
from  the  mere  allegation  of  legal  title.  Indeed,  the  right  to 
resort  to  a  court  of  equity  in  such  cases  was  based  upon  the 
assumption  that  the  legal  title  to  the  property  had  been  es- 
tablished by  an  action  at  law,  and  jurisdiction  was  enter- 
tained solely  for  the  purpose  of  protecting  the  party  in  the 
enjoyment  of  rights  in  possession  thus  legally  established; 
and,  while  the  jurisdiction  has,  in  the  course  of  time,  been 
somewhat  extended,  it  has  never  been  stretched  to  cover 
cases  brought  merely  to  establish  a  legal  title,  or  recover 
possession  alone."  l  If  the  plaintiff  is  possessed  of  the  legal 
title,  and  is  not  in  possession,  there  is  no  occasion  for  the 
exercise  of  equitable  jurisdiction,  since  the  remedy  at  law 
by  ejectment  is  full,  adequate,  and  complete.2  If  the  legal 
owner  is  in  possession,  as  he  can  bring  no  action  at  law,  he 
may  ask  a  court  of  equity  to  remove  a  cloud  upon  his  title, 
which  makes  it  less  valuable,  and  may  prevent  his  disposing 
of  it  to  others.8  The  object  of  a  bill  to  remove  a  cloud  up- 
on title  and  to  quiet  the  possession  of  real  estate  is  to  pro- 
tect the  owner  of  the  legal  title  from  being  disturbed  in  his 
possession,  or  harassed  by  suits  in  regard  to  that  title ;  and 
the  bill  cannot  be  maintained  without  clear  proof  of  both 
possession  and  legal  title  in  the  plaintiff.4  If  a  plaintiff  has 
the  legal  title  to  lands  which  are  wild,  unimproved,  and  un- 
occupied, he  is  deemed  to  have  a  constructive  possession, 
and  he  may  institute  proceedings  for  the  removal  of  a  cloud 
upon  his  title.5  In  many  of  the  states  statutes  have  been 
passed  authorizing  a  suit  in  equity  to  quiet  title  to  be  brought 
by  a  person  who  is  out  of  possession.  In  other  states  the 

f  314.  i  Moores  v.  Townshend,  102  N.  Y.  337,  392,  7  N.  E.  401,  1 
Keener.  Eq.  Oas.  33o,  per  Judge  Ruger. 

*  Davis  v.  Sloan,  95  Mo.  552,  5  S.  W.  702;   Sheppard  v.  Nixon,  43 
N.  J.  Eq.  627,  13  Atl.  617;   Gage  v.  Schmidt,  104  111.  10(5:    Wetherell 
v.  Eberle,  123  111.  666,  14  N.  E.  675:    Kilgannon  v.  Jenklnson,  51 
Mich.  240.  16  N.  W.  390;    Frost  v.  Spitley,  121  U.  S.  552,  7  Sup.  Ot 
1129,  30  L.  Ed.  1010,  1  Keener,  Eq.  Cas.  359. 

«  Allen  v.  Hanks,  13(5  U.  S.  300.  311,  10  Sup.  Ct.  9C1,  34  L.  Ed.  414. 

«  Frost  y.  Spitley,  121  U.  S.  552,  7  Sup.  Ct.  1129,  30  L.  Ed.  1010,  1 
Keener,  Eq.  Cas.  359;  Orton  v.  Smith,  18  How.  263,  15  L.  Ed.  393; 
Alexander  Y.  Pendleton,  8  Cranch,  462,  3  L.  Ed.  624. 

#  Wetherell  y.  Eberle,  123  III  606,  14  N.  E.  675. 


§   314)  CLOUD    ON    TITLE.  629 

courts  have  permitted  such  suits  without  regard  to  the  pos- 
session of  the  plaintiff.0  It  has  been  held  that  the  holder 
of  an  equitable  title  to  real  property  may  maintain  a  suit  to 
remove  a  cloud  on  his  title,  although  he  is  not  in  posses- 
sion ; 7  but  the  supreme  court  of  the  United  States  has  re- 
jected this  doctrine,  and  held  that  a  person  out  of  possession 
cannot  maintain  the  suit,  whether  his  title  be  legal  or  equi- 
table. If  his  title  is  equitable,  he  must  acquire  the  legal  ti- 
tle, and  then  bring  ejectment.8 

«  Bausman  v.  Kelley,  38  Minn.  197,  36  N.  W.  333;  De  Oamp  v. 
Carnahan,  26  W.  Va.  839. 

t  Mason  v.  Black,  87  Mo.  329;  Connecticut  Mut.  Life  Ins.  Co.  v. 
Smith,  117  Mo.  261,  22  &  W.  623;  Freeman  v.  Brown,  96  Ala.  301, 
11  South.  249;  Bryan  v.  Winburn,  43  Ark.  29. 

»  U.  S.  v.  Wilson,  118  U.  S.  86,  6  Sup.  Ct.  991,  30  L.  Ed.  110;  Fus- 
sell  v.  Gregg,  113  U.  S.  550,  5  Sup.  Ct.  631,  28  L.  Ed.  993;  Frost  v. 
Spitley,  121  U.  S.  552,  7  Sup.  Ct.  1129,  30  L.  Ed.  1010,  1  Keener,  Eq. 
Cas.  359;  Herrington  v.  Williams.  31  Tex.  448. 


630  ANCILLARY    REMEDIES.  (Ck.    25 

CHAPTER  XXV. 

ANCILLARY   REMEDIES. 

815.  Bill  of  Discovery. 

816-320.  Rules  Respecting  Discovery. 

321.  Bills  to  Perpetuate  Testimony. 

322.  Examination  of  Witnesses  De  Bene  Esse. 

323.  Writ  of  Ne  Exeat 

824.  Interpleader. 

825.  Essential  Features. 
82G.    Receivers. 

827.  In  what  Cases  Receivers  will  be  Appointed. 

BILL  OP  DISCOVERY. 

815.  A  bill  of  discovery  -was  a  bill  which  asked  no 
relief,  but  simply  the  discovery  of  facts  rest- 
ing in  the  knowledge  of  the  defendant,  or 
of  deeds  or  writings  in  the  possession  or 
the  power  of  the  defendant,  in  order  to 
maintain  the  right  or  title  of  the  party  asking 
it,  in  some  suit  or  action  or  other  proceed- 
ing in  another  court.  In  general,  to  main- 
tain the  bill,  it  was  necessary  that  an  action 
should  have  been  already  commenced  in  an- 
other court,  unless  the  object  of  the  bill  was 
to  ascertain  who  was  the  proper  party  against 
whom  the  suit  or  action  should  be  brought.1 

The  power  of  courts  of  equity  to  compel  discovery  arose 
from  the  inability  of  courts  of  law  to  compel  a  complete  dis- 
covery of  the  material  matters  involved  in  the  controversy 
by  the  oaths  of  the  parties  thereto,  and  also  because  of  their 
want  of  power  to  compel  the  production  of  deeds,  books,  and 
writings  in  the  possession  or  under  the  control  of  one  of  the 

I  B13.  »  Snell.  Eq.  p.  507;  Angoll  v.  Angell,  1  Sim.  &  S.  83;  May- 
or, etc.,  of  London  v.  Levy,  8  Yes.  4O4. 


§   315)  BILL   OF    DISCOVERY.  631 

parties.2  Jeremy  Bentham  described  the  common-law  rules 
of  evidence  as  devised  to  exclude  the  testimony  of  every  one 
who  was  likely  to  know  anything  about  the  matter.  He 
was  the  first  to  insist  that,  as  a  rule,  no  witness  ought  to 
be  disqualified  on  account  of  interest  alone;  and  that  the 
objection  to  the  evidence  of  an  interested  person  ought  to 
be  treated,  not  as  an  objection  to  the  reception  of  his  evi- 
dence, but  merely  as  detracting  from  its  weight  when  re- 
ceived. t 

It  is  apparent  that  the  evils  of  the  common-law  rules  of 
evidence  would  have  been  intolerable  had  it  not  been  for  the 
jurisdiction  assumed  by  courts  of  equity  to  grant  discovery, 
and  thus  render  the  evidence  of  the  litigant  parties  avail- 
able. Whenever  a  defendant  in  an  action  at  law  desired  to 
avail  himself  of  facts  known  only  to  himself  and  the  plain- 
tiff, he  would  file  his  bill  in  equity,  calling  on  the  plaintiff 
to  answer  on  oath  the  interrogatories  contained  in  it;  and 
then  the  plaintiff,  unless  prepared  to  perjure  himself,  was 
obliged  by  his  answer  to  admit  (though  it  might  be  with  his 
own  coloring)  the  substantial  facts  of  the  case.  This  an- 
swer, though  not  evidence  in  the  ordinary  sense,  might  then 
have  been  introduced  in  the  action  at  law  by  the  defendant 
as  an  admission  made  by  the  plaintiff,  as  any  letter  writ- 
ten by  him,  admitting  relevant  facts,  might  have  been  given 
in  evidence.  In  addition  to  the  cases  in  which  the  object  of 
the  bill  was  to  obtain  an  admission  of  facts  exclusively  with- 
in the  knowledge  of  the  parties  litigant,  there  were  many 
others  in  which  the  aim  was  to  obtain  a  discovery  and  pro- 
duction of  documents ;  an  object  effected  in  equity  by  means 
of  the  ordinary  interrogatory  as  to  documents,  and  a  sub- 
sequent motion  for  their  production. 

By  means  of  these  equitable  proceedings,  the  shortcom- 
ings of  the  law  were,  in  a  measure,  remedied.  Since,  how- 
ever, the  admission  of  a  third  person  could  never  be  received 
in  evidence  against  a  party  litigant,  the  assistance  of  equity 
could  in  no  way  be  made  available  to  supply  the  exclusion 
of  persons  disqualified  because  of  interest,  but  not  actually 
parties  to  the  litigation ;  and  the  rule  was  well  settled  that 
no  bill  of  discovery  lay  against  a  mere  witness.*  Not  only 

2  Colgate  v.  Compagnie  Francaise  du  Tclegraphe  de  Paris  a  N.  Y. 
(C.  C.)  23  Fed.  82. 

•  Feiiton  v.  Hughes,  7  Ves.  2S7,  Story,  Eq.  Jur.  $  1499. 


G32  ANCILLAItY    REMEDIES.  (Ch.    20 

would  equity  grant  discovery  in  aid  of  actions  at  law,  but, 
whenever  a  suit  was  brought  in  equity,  touching  matters 
otherwise  within  its  jurisdiction,  the  defendant  might  be 
compelled  to  answer  interrogatories  which  were  contained 
in  the  body  of  the  bill;  and  the  plaintiff  could  likewise  be 
compelled  to  make  discovery  by  means  of  cross  interroga- 
tories in  the  answer.4 

Effect  of  Modern  Statutes. 

In  England  statutes  were  passed  in  the  earlier  years  of 
the  reign  of  Queen  Victoria  authorizing  either  party  to  an 
action  or  proceeding  at  law  to  examine  his  opponent  under 
oath  as  a  witness,  and  empowering  courts  of  law  to  compel 
either  party  to  an  action  to  produce  documents  in  his  pos- 
session or  under  his  control.5  The  English  supreme  court 
of  judicature  act  of  1873,  and  the  rules  adopted  in  conform- 
ity therewith,  permit  a  party  to  an  action  to  obtain  discov- 
ery from  the  other  upon  interrogatories,  and  provide  that 
the  court  may  order  any  party  to  discover,  produce,  and  per- 
mit inspection  of  documents  in  his  possession  or  under  his 
control.'  There  is  thus  provided  a  simpler  and  more  effi- 
cacious mode  of  discovery  than  that  obtained  by  a  resort  to 
equity  for  a  bill,  which  has  practically  superseded,  if  not  en- 
tirely abrogated,  the  equitable  remedy. 

The  «tates,  like  New  York,  which  have  adopted  the  so- 
called  reformed  procedure,  have  enacted  statutes  providing 
similar  modes  for  procuring  ev'dence  from  the  opposite  par- 
ty with  a  like  effect.  In  some  of  the  states  the  suit  for  dis- 
covery is  expressly  abrogated  by  statute.  Even  in  those 
states  where  the  courts  of  law  and  equity  are  retained  dis- 
tinct from  each  other  statutes  exist  which  permit  the  ex- 
amination of  parties  to  all  act  ons  and  proceedings,  both  at 
law  and  in  equity,  in  the  same  manner  as  other  witnesses, 
and  authorize  courts  to  compel  che  production  and  inspec- 
tion of  books,  papers,  and  documents. 

It  has  sometimes  been  held,  notwithstanding  these  stat- 
utes, that  the  equitable  jurisdiction  to  entertain  a  suit  for  a 
discovery  still  exists,  upon  the  theory  that  equity,  having 
once  acquired  jurisdiction,  cannot  lose  that  jurisdiction  by 

«  Story,  Eq.  Jur.  |  1483. 

•  14  &  15  Viet  c.  00,  §  2;   17  &  13  Viet.  c.  12"),  §§  61,  52. 

•  36  &  37  Viet  c.  00,  Schedule  Rules  of  Procedure,  25-27. 


§§'316—320)          RULES    RESPECTING    DISCOVERY.  633 

the  mere  fact  that  the  common-law  courts  have  also  become 
invested  with  the  same  powers.7  This  is  not,  by  any  means, 
a  universal  rule.  In  many  of  the  states  the  courts  have  ex- 
pressly declared  that  the  statutory  method  of  discovery  has 
necessarily  abrogated  the  equitable  jurisdiction.8  In  any 
event,  the  resort  to  equity  at  the  present  time  is  seldom  had. 
The  principles,  however,  on  which  courts  of  equity  acted  in 
granting  discovery  are  still  important,  partly  because  they 
form  a  basis  of  the  system  of  statutory  discovery  in  force 
in  many  of  the  states,  and  partly  because  they  are  the  origin 
of  some  very  important  rules  of  evidence. 


RULES  RESPECTING  DISCOVERT. 

316.  The  plaintiff's  right  to  a  discovery  is  confined 

to  facts  "which  are  material  to  his  own  title 
or  cause  of  action.  It  does  not  authorize 
him  to  ascertain  facts  in  support  of  the  de- 
fense of  the  defendant.1 

317,  A    bill  of  discovery   cannot  be  maintained  in 

aid  of  criminal  proceedings,  nor  can  it  be 
maintained  if  the  court  in  which  the  orig- 

f  Shotwell's  Adm'x  v.  Smith,  20  N.  J.  Eq.  79;  Hoppock's  Ex'rs  v. 
Railroad  Co.,  27  N.  J.  Eq.  286;  Post  v.  Railroad  Co.,  144  Mass.  341, 
11  X.  E.  5-10.  r>9  Am.  Rep.  86;  Union  Pass.  Ry.  Co.  v.  Mayor,  etc.,  71 
Md.  238,  17  Atl.  933;  Handley  v.  Heflin,  84  Ala.  600,  4  South.  725; 
Kearny  v,  Jeffries,  48  Miss.  3T>7;  Lancy  v.  Randlett,  80  Me.  169,  13 
Atl.  086,  6  Am.  St.  Rep.  169;  Russell  v.  Dickeschied,  24  W.  Va.  61. 
It  should  be  observed,  however,  that  in  these  cases  discovery  was 
sought  of  facts  exclusively  within  the  defendant's  knowledge,  and 
not  of  facts  known  to  the  plaintiff,  and  to  which  he  was  incompe- 
tent to  testify. 

«  Anderson  v.  Bank,  2  Ch.  Div.  644;  Attorney  General  v.  Gaskill, 
20  Ch.  Div.  519;  Ex  parte  Boyd,  105  U.  S.  657,  26  L.  Ed.  1200;  Rio- 
pelle  v.  Doellner,  26  Mich.  105;  Hall  v.  Joiner,  1  S.  C.  190;  Chapman 
v.  Lee,  45  Ohio  St.  356,  13  N.  E.  730. 

§§  316-320.  i  Allan  v.  Allan,  15  Ves.  131;  Llewellyn  T.  Badeley,  1 
Hare,  527;  Phillips  v.  Prevost,  4  Joiins.  Oh.  (N.  Y.)  205;  Cuyler  v. 
Fogert,  3  Paljre  (N.  Y.)  18U;  tloppock's  Ex'rs  v.  Railroad  Co.,  27  N. 
J.  Eq.  286;  Heath  v.  Railway  Co..  1)  B  latest*,  316,  Fed.  Gas.  No* 
6,307. 


634  ANCILLARY    REMEDIES.  (Ch.   25 

inal  action  is  pending  is  authorized  to 
grant  the  same  discovery.1 

818.  No  man  need  discover  matter  tending  to  crim- 

inate himself,  or  to  expose  himself  to  a 
penalty  or  forfeiture.* 

819.  Discovery  cannot  be  had  of  confidential  com- 

munications between  counsel  and  client;4 
nor  can  a  married  -woman  be  compelled  to 
disclose  facts,  ascertained  by  her  through 
her  marital  relation,  which  would  tend  to 
impose  a  liability  upon  her  husband.' 

320.  Public  officials  cannot  be  compelled  to  disclose 
matters  of  state,  at  the  suit  of  an  individ- 
ual, the  publication  of  which  may  be  prej- 
udicial to  the  public.' 

These  are,  perhaps,  the  most  important  of  the  rules  ap- 
plicable to  a  suit  for  a  discovery.  The  practical  utility  and 
actual  use  of  these  principles  is  not  so  apparent  since  the 
relief  by  a  bill  of  discovery  has  become  practically  obsolete. 
An  attempt  will  not,  therefore,  be  made  to  explain  and  illus- 
trate their  application.  . 

The  defendant  must  answer  as  to  all  facts  material  to  the 
plaintiff's  case;  and  he  must  answer  distinctly,  completely, 

*  Heath  v.  Railway  Co.,  9  Blatchf.  316,  Fed.  Gas.  No.  6,307;  Drexel 
T.  Berney  (C.  C.)  14  Fed.  268;  Post  v.  Railroad  Co.,  144  Mass.  341, 
11  N.  E.  540,  59  Am.  Rep.  86. 

»  East  India  Co.  v.  Campbell,  1  Ves.  Sr.  246;  Claridge  v.  Hoare,  14 
Ves.  59,  65;  Saumlers  v.  Wiel  [1892]  2  Q.  B.  Div.  321;  Boyd  v.  U. 
S.,  116  U.  S.  616,  6  Sup.  Ot  524,  29  L.  Ed.  746;  State  v.  Hardware 
Co.,  109  Mo.  118,  18  S.  W.  1125,  15  L.  R.  A.  676;  Horstmau  v.  Kauf- 
man, 97  Pa.  147. 

«  Greenough  v.  Gaskell,  1  Mylne  &  K.  98;  Jones  v.  Pugh,  1  PhlL 
Ch.  96;  Parkhurst  v.  Lowten,  2  Swanst.  194,  216;  Connecticut  Mut 
Life  Ins.  Co.  v.  Schaefer,  94  U.  S.  457,  24  L.  Ed.  251;  Edison  Elec- 
tric Light  Co.  v.  Lighting  Co.  (O.  C.)  44  Fed.  294. 

»  I*?  Texier  v.  Auspach,  5  Ves.  322;  Cartwright  v.  Green.  8  Vea, 
405.  408. 

«  Smith  v.  East  India  Co.,  1  Phil.  Oh,  50.  And  see,  Marbury  r. 
Madison,  1  Cranch,  137,  2  L,  Ed.  60. 


§§    316-320)  RULES   RESPECTING    DISCOVERT.  635 

and  without  needless  prolixity,  and  to  the  best  of  his  in- 
formation and  belief.7  As  stated  above,  the  plaintiff  is  only 
entitled  to  know  the  facts  which  are  material  to  his  title  or 
his  cause  of  action.  He  is  not  entitled  to  ascertain  the  facts 
in  support  of  the  defense  of  the  defendant,  although  he  may 
compel  a  discovery  as  to  the  defendant's  title,  and  as  to  what 
constitutes  his  defense.8 

The  foregoing  rules  also  apply  when  discovery  is  sought 
with  respect  to  documents  in  the  defendant's  possession  or 
under  his  control.  When  required  by  the  plaintiff,  the  de- 
fendant must  set  forth  a  list  of  all  documents  in  his  pos- 
session from  which  discovery  of  the  matter  in  question  can 
be  obtained ;  and,  if  it  appears  from  the  answer  that  the 
documents  are  in  the  defendant's  possession,  or  under  his 
control,  and  that  they  are  of  such  character  as  to  consti- 
tute proper  matters  of  discovery  within  the  ordinary  rules, 
the  plaintiff  will  be  permitted  to  inspect  and  copy  them,  and 
their  production  at  the  hearing  of  the  cause  will  also  be  com- 
pelled.8 The  documents  must  be  in  defendant's  possession 
or  power,10  but  for  this  purpose  it  is  sufficient  that  they  are 
admitted  to  belong  to  him,  though  they  may  be  out  of  his 
actual  custody.11  The  possession,  therefore,  of  his  solicitor 
or  agent,  or  of  any  other  person  whose  possession  he  can 
control,  is  equivalent  to  his  own.12  If,  however,  a  docu- 
ment is  in  the  joint  possession  of  the  defendant  and  of  some 
other  person,  who  is  not  before  the  court,  its  production  will 
not  be  compelled.18 

i  Smith  v.  East  India  Co.,  1  Phil.  Ch.  50. 

«  Haskell  v.  Haskell,  3  Gush.  (Mass.)  542;  Wilson  v.  Webber,  2 
Gray  (Mass.)  558;  Norfolk  &  W.  R.  Co.  v.  Cable  Co.,  88  Va.  932, 
14  S.  E.  689;  Downie  v.  Nettleton,  61  Conn.  593,  24  Atl.  977. 

»  Adams,  Eq.  pp.  12,  13;  Wisner  v.  Dodds  (C.  C.)  14  Fed.  658. 

10  Hardman  v.  Ellames,  2  Mylne  &  K.  732. 

11  Clinch  v.  Financial  Corp.,  L.  R.  2  Eq.  271;   Earl  of  Glengall  v. 
Frazer,  2  Hare,  99. 

12  Eager  v.  Wiswall,  2  Paige  (N.  Y.)  369;    Robbins  T.  Davis,  1 
Blatchf.  238,  Fed.  Cas.  No.  11,880. 

is  Edmonds  v.  Foley.  30  Beav.  282. 


G36  ANCILLARY    REMEDIES.  (Ch.  25 


BILLS  TO  PERPETUATE  TESTIMONY. 

321.  The  object  of  a  bill  to  perpetuate  testimony 
was  to  preserve  evidence  -when  it  was  in 
danger  of  being  lost  before  the  matter  to 
which  it  related  could  be  made  the  subject 
of  a  judicial  investigation.1 

The  common  law  furnished  no  method  for  taking  the  tes- 
timony of  a  person  in  anticipation  of  an  action  not  yet 
brought.  Where  a  person  had  some  right  or  interest  which 
could  not  at  the  time  be  made  the  subject  of  an  action  at 
law,  and  which  was  endangered  because  of  the  likelihood  of 
a  failure  of  proof  by  the  death  of  witnesses  before  such  an 
action  could  be  brought,  equity,  in  response  to  that  maxim 
which  declares  that  it  will  not  suffer  a  wrong  without  a 
remedy,  intervened  by  a  bill  to  perpetuate  the  testimony  of 
such  witnesses.  The  exercise  of  jurisdiction  in  such  cases 
being  subject  to  the  objection  that  the  depositions  so  taken 
were  not  to  be  published  until  after  the  death  of  witnesses, 
and  the  evidence  was,  therefore,  not  given  under  the  legal 
penalties  attached  to  perjury,  courts  of  equity  did  not  en- 
tertain such  bills,  unless  absolutely  necessary  to  prevent  a 
failure  of  justice,*  or  where  the  preservation  of  the  evidence 
would  clearly  tend  to  prevent  future  litigation,  or  to  defeat 
such  litigation  if  commenced.8  If,  therefore,  it  were  pos- 
sible that  the  matter  in  controversy  could  be  made  the  sub- 
ject of  immediate  judicial  investigation  by  the  party  who 
sought  to  perpetuate  the  testimony,  there  was  no  reason  for 
giving  him  the  advantage  of  deferring  his  proceedings  to  a 
future  time,  and  of  substituting  written  depositions  for  viva 
voce  evidence.*  Hence  suits  to  perpetuate  testimony  were 
rigidly  confined  to  cases  where  the  party  who  filed  the  bill 
could  not  bring  the  matter  into  immediate  judicial  investi- 
gation, either  because  his  title  was  in  remainder,  or  because 
he  himself  was  in  possession  of  the  property.* 

f  821.     i  Snell,  Eq.  p.  721. 

«  Angell  v.  Angell,  1  Sim.  &  S.  83;  Booker  v.  Booker,  20  Ga.  781. 

•  Brooking  v.  Maudslay,  38  Ch.  Div.  636. 
«  Ellice  v.  Uoupell,  32  Beav.  299. 

•  Booker  T.  Booker,  20  Ga,  781;  Baxter  v.  Farmer,  42  N.  C.  239; 


§   322)        EXAMINATION   OP   WITNESSES    DK    BENE    ESSE.  637 

A  mere  expectancy — as  that  of  an  heir  at  law — was  not 
considered  sufficient  to  sustain  the  bill;  but  any  interest 
which  the  law  would  recognize,  however  small  or  remote, 
even  though  contingent,  entitled  a  party  to  the  relief.6  So, 
also,  a  bill  to  perpetuate  testimony  was  allowed  only  where 
some  right  to  property  was  involved,  as  distinguished  from 
an  office  or  dignity.7  The  perpetuation  of  testimony  is  now 
regulated  by  statutes  in  most  of  the  states,  and  independent 
suits  in  equity  are  no  longer  resorted  to  for  this  purpose ; 
but  the  principles  on  which  courts  of  equity  acted  form  the 
basis  of  most  of  the  statutes  on  this  subject,  and  hence  they 
are  still  important.* 


EXAMINATION  OF  WITNESSES  DE  BENE  ESSE. 

322.  Either  party  to  a  litigation  actually  pending 
might  maintain  a  suit  to  take  testimony 
de  bene  esse  for  the  purpose  of  examining 
a  witness  -who  was  very  aged,  sick,  or  who 
was  about  to  depart  from  the  country,  if 
there  was  a  probability  that  at  the  time  of 
trial  such  witness  would  be  dead,  unable 
to  appear,  or  absent  from  the  country.1 

Spencer  v.  Peek,  L.  R.  3  Eq.  415;  Uanover  v.  Homfray,  19  Ch.  Div. 
224;  Hall  v.  Stout,  4  DeL  Oh.  269. 

«  Dursley  v.  Berkeley,  6  Ves.  251. 

•*  Townshend  Peerage  Case,  10  Clark  &  F.  289.  Statute  5  &  6  Viet. 
c.  69,  extends  the  right  to  perpetuate  testimony  in  favor  of  persons 
having  a  mere  expectancy  to  property,  or  to  any  dignity,  honor,  or 
title. 

s  In  the  federal  courts,  depositions  in  perpetuam  rei  memoriam 
are  directed  to  be  taken  according  to  the  usages  of  chancery.  Rev. 
St.  U.  S.  §  866. 

§  322.  i  The  phrase  "de  bene  esse"  Is  a  term  applied  to  such  acts 
or  proceedings  as  are  done  or  permitted  to  take  place  in  an  action, 
but  the  validity  or  effect  of  which  depends  upon  some  subsequent 
act  or  fact,  matter  or  proceeding.  An  examination  of  witnesses  de 
bene  esse  is  an  examination  of  them  out  of  court,  before  the  trial, 
subject  to  the  contingency  of  their  death,  removal,  or  inability  to 
attend  the  trial,  in  which  event  such  examination  is  good,  and  the 
deposition  may  be  read  in  evidence  on  the  trial;  otherwise  not. 
Grah.  Pr.  584;  1  Burrill,  Law  Diet.  (2d  Ed.)  212,  447. 


638  ANCILLARY    REMEDIES.  (Ch.    25 

Originally,  common-law  courts  possessed  no  machinery 
for  taking  and  preserving  the  testimony  of  a  witness  who 
was  aged,  sick,  infirm,  or  about  to  depart  from  the  coun- 
try, and  this  power  was  not  conferred  upon  them  in  Eng- 
land until  i83O.2  Statutes  in  all  the  states  confer  power  on 
all  courts  of  general  original  jurisdiction,  whether  of  law  or 
of  equity,  to  issue  commissions  for  the  examination  of  wit- 
nesses at  home  or  abroad,  and  independent  suits  in  equity 
have,  therefore,  become  obsolete.  While  bills  de  bene  esse 
and  bills  to  perpetuate  testimony  obviously  resembled  each 
other,  there  was  this  distinction:  Bills  de  bene  esse  could 
be  brought  only  during  the  pendency  of  an  action,  and  not 
before ; 8  and  they  might  be  maintained  by  a  person  not  in 
possession  of  the  property  in  dispute,  as  well  as  by  a  person 
in  possession.* 

WRIT  OF  NE  EXEAT. 

823.  The  writ  of  ne  exeat  is  a  writ  issued  by  a 
court  of  equity  to  prevent  a  person  from 
leaving  the  state  until  bail  is  given  to  abide 
the  decree  of  the  court.1 

The  writ  of  ne  exeat  regno  was  originally  a  high  prerog- 
ative writ  issued  by  a  court  of  equity  for  great  political  ob- 
jects and  purposes  of  state.  The  writ  is  now  granted  for 
the  protection  of  private  rights  with  much  caution  and  jeal- 
ousy.2 In  several  of  the  states  the  writ  has  been  abolished 
by  statute,  or  by  judicial  construction  as  opposed  to  the 
spirit  of  our  institutions.* 

As  a  general  rule,  the  writ  is  granted  only  in  cases  of  equi- 
table debts  and  claims,  and  operates  in  the  nature  of  equi- 

«  St  1  Wm.  IV.  c.  22,  5  1. 

»  Angell  v.  Angell,  1  Sim.  &  S.  83;  Howard  v.  Folger,  15  Me.  447. 

«  Ausrell  v.  Angell,  1  Sim.  &  S.  83. 

f  323.  *  Cable  v.  Alvord,  27  Ohio  St  666;  Gresham  v.  Peterson, 
2T,  Ark.  377;  Mitchell  v.  Bunch,  2  PaJge  (N.  Y.)  617,  22  Am.  Dec.  669. 
Compare  the  provisions  of  the  federal  bankruptcy  act  (section  9b)  as 
to  power  to  prevent  bankrupt  from  leaving  district  of  his  residence, 
etc. 

»  Story,  Eq.  Jur.  §S  1465,  1467. 

»  Code  Civ.  Proc.  N.  Y.  S  548;  Collins  v.  Collins,  80  N.  Y.  24;  Ex 
parte  Marker.  49  CaL  4G5. 


§    324)  1HTERPLEADMU  639 

table  bail.4  The  equitable  demand  must  be  certain  in  its 
nature,  and  actually  and  presently  payable,  not  contingent 
or  prospective,5  or  unliquidated  and  uncertain.6  In  New 
Jersey  the  writ  may  be  granted  before  the  suit  is  actually 
pending.7  The  writ  may  be  issued  against  a  foreigner  who 
is  within  the  jurisdiction  of  the  court,  as  well  as  a  citizen  of 
the  state.8 

To  the  rule  that  the  writ  will  issue  only  in  cases  of  equitable 
demands  there  are  two  exceptions :  (i)  When  alimony  has 
been  decreed  to  a  wife,  the  writ  is  procurable  to  restrain  the 
husband  from  evading  his  obligation  by  leaving  the  state.9 
The  alimony  must,  however,  be  actually  decreed,  and  not 
appealed  from.  The  writ  could  not  be  obtained  while  the 
case  was  still  pending.10  (2)  When  there  is  an  admitted  bal- 
ance due  from  defendant  to  plaintiff,  but  the  plaintiff  claims 
a  larger  sum,  he  may  be  assisted  by  the  writ.11  This  case 
is  brought  within  the  purview  of  equity  by  its  jurisdiction 
in  matters  of  account.1* 


INTERPLEADER. 

824.  Where  two  or  more  persons,  whose  titles  are 
connected  by  reason  of  one  being  derived 
from  the  other,  or  of  both  being  derived 
from  the  same  source,  claim  the  same  thing, 
debt,  or  duty  by  different  interests  from  a 

4  Bonesteel  v.  Bonesteel,  28  Wis.  245;  Allen  v.  Hyde,  2  Abb.  N. 
C.  197;  Rice  v.  Hale,  5  Gush.  (Mass.)  241;  Malcolm  v.  Andrews,  68 
111.  100. 

•  Anon.,  1  Atk.  521;   Rico  v.  Gualtler,  3  Atk.  500. 

•  Etches  v.  Lance,  7  Ves.  417;   Cock  v.  Ravie,  6  Ves.  283. 
'  T  Clark  v.  Clark,  51  N.  J.  Eq.  404,  26  Atl.  1012. 

•  Mitchell  v.  Bunch,  2  Paige  (N.  Y.)  G17,  22  Am.  Dec    669;    Mc- 
Namara  v.  Dwyer,  7  Paige  (N.  Y.)  237,  32  Am.  Dec.  627. 

»  Read  v.  Read,  1  Ch.  Cas.  115;  Shaftoe  Y.  Shaftoe,  7  Ves.  171; 
Denton  v.  Denton,  1  Johns.  Ch.  (N.  Y.)  364. 

10  Dawson  v.  Dawson,  7  Ves.  173;    Colverson  v.  Bloomfleld,  29 
Ch.  Div.  341. 

11  Jones  T.  Sampson,  8  Ves.  598;    Jones  v.  Alephsin,  16  Ves.  471; 
McGehee  v.  Polk,  24  Ga,  406;   Porter  v.  Spencer,  2  Johns.  Ch.  169, 
171. 

«  Allen  v.  Smith,  16  N.  Y.  418,  419;  MacDonough  v.  Gaynor,  18 
N.  J.  Eq.  249. 


640  ANCILLARY   REMEDIES.  (Cb.   25 

third  person,  such  third  person,  if  he  does 
not  himself  claim  any  interest  in  the  matter, 
and  is  under  no  independent  liability  to 
either  of  such  persons,  may  maintain  a  bill 
of  interpleader.  In  his  bill  he  must  state 
his  own  rights  and  the  claims  of  the  other 
persons,  and  pray  that  they  may  interplead, 
so  that  the  court  may  adjudge  to  -whom 
the  thing,  debt,  or  duty  belongs;  and,  if 
suits  have  been  brought  against  him  by 
such  persons,  he  may  also  pray  that  they 
be  restrained  from  prosecuting  such  suits 
until  the  right  is  determined.1 

The  remedy  by  interpleader  was  not  unknown  to  the  com- 
mon law,  but  it  had  a  very  narrow  range  of  purpose  and  ap- 
plication, existing  only  where  the  possession  of  the  third 
person  had  arisen  from  accident  or  a  joint  bailment  by  the 
other  persons. 

The  equity  is  that  the  conflicting  claimants  should  liti- 
gate the  matter  among  themselves,  without  involving  the 
stakeholder  in  their  dispute.2  The  office  of  a  suit  of  inter- 
pleader is  not  to  protect  a  party  against  a  double  liability, 
but  against  double  vexation  in  respect  of  one  liability.  The 
essence  of  the  suit  is  that  the  plaintiff  shall  be  liable  to  one 
only  of  the  claimants,  and  the  relief  which  equity  affords 
him  is  against  the  vexation  of  two  proceedings  on  a  matter 
which  may  be  settled  in  a  single  suit.8  It  is  not  necessary 
that  suit  should  have  been  actually  commenced  against  the 
plaintiff.  It  is  sufficient  if  conflicting  claims  have  been  made 
against  him,  and  he  is  in  danger  of  being  sued  by  the  sev- 
eral claimants.4  But,  after  an  action  at  law  has  been 

I  324.  i  Mitf.  Eq.  PL  58,  69;  Adam*  Eq.  p.  202;  Snell,  Bq.  pp. 
COO,  506. 

»  Adams,  Eq.  p.  202. 

•  Crawford  v.  Fisher,  1  Hare,  436.  441;  School  Dlst  No.  1  of 
Grand  Haven  v.  Weston,  31  Mich.  85;  Angell  v.  Hadden,  15  Ves. 
244;  Pflster  v.  Wade,  56  Gal.  43. 

«Anjsell  v.  Hadden,  15  Ves.  244;  Gibson  v.  Goldthwaite,  7  Ala. 
281,  42  Am.  Dec.  502;  Farley  v.  Blood,  30  N.  H.  354;  Yarbrough  r. 


§    325)  INTERPLEADER.  641 

brought  to  a  judgment  against  him  in  favor  of  one  of  the 
claimants,  a  court  of  equity  cannot  intervene  by  means  of 
an  interpleader.' 

The  right  to  file  a  bill  of  interpleader  in  equity  exists 
where  both  of  the  claims  are  legal,  or  where  one  is  legal  and 
the  other  is  equitable.*  In  many  of  the  states,  statutes  have 
been  enacted  which  permit  a  defendant  sued  upon  a  con- 
tract, or  for  specific  real  or  personal  property,  who  claims 
no  interest  in  the  subject-matter,  to  apply  to  the  court  to 
substitute  in  his  place  a  third  person,  who  makes  against  him 
a  demand  for  the  same  debt  or  property.7  The  principles 
governing  this  statutory  right  of  interpleader  are,  in  the 
main,  the  same  as  those  which  controlled  courts  of  equity, 
independent  of  statutes,  and  they  will  now  be  considered. 


SAME— ESSENTIAL  FEATURES. 

825.  Independent  of  statute,  the  following  condi- 
tions must  exist  to  give  a  right  to  an  inter- 
pleader in  equity: 

(a)  Two   or  more  persons  must  claim  the   same 

thing,  debt,  or  duty  from  the  complainant. 

(b)  Privity  of  title  must  exist  between  the  claim- 

ants. 

(c)  The   complainant    must    have    no   beneficial 

interest  in  the  thing  claimed. 

(d)  The  complainant  must  have  incurred  no  in- 

dependent personal  liability  to   either    of 
the  claimants. 

Thompson,  3  Smedes  &  M.  (Miss.)  291,  41  Am.  Dec.  626;  Providence 
Bank  v.  Wilkinson,  4  R.  I.  507,  70  Am.  Dec.  160. 

3  McKinney  v.  Kuin,  59  Miss.  186;  Yarbrough  v.  Thompson,  3 
Smedes  &  M.  (Miss.)  291,  41  Am.  Dec.  626;  Larabrie  v.  Brown,  26 
Law  J.  Ch.  605. 

e  Morgan  T.  Marsack,  2  Mer.  107;  Lowndes  v.  Cornford,  18  Ves. 
299. 

i  Code  Civ.  Proc.  N.  Y.  §  820.    A  similar  statute  has  been  enacted 
in  all  of  the  code  states. 
EATON.EQ.— 41 


642  ANCILLARY    REMEDIES.  (Ch.   25 

(e)  The  complainant  must  be  unable  to  ascertain 
•without  hazard  to  himself  to  -which  of  the 
claimants  the  thing,  debt,  or  duty  belongs.1 

The  same  thing,  debt,  or  duty  must,  in  every  case,  be 
claimed  by  the  persons  against  whom  the  relief  is  asked. 
If  the  subject  of  dispute  has  a  bodily  existence,  its  identity 
can  create  no  difficulty;  but,  where  the  subject-matter  is  a 
chose  in  action,  the  question  of  identity  is  attended  with 
some  difficulty,  and  must  in  each  case  be  determined  by  the 
nature  of  the  debt  or  duty,  and  the  incidents  connected  with 
it.2  Thus,  a  purchaser  of  goods  who  has  accepted  a  draft 
drawn  on  him  by  a  bank  for  the  purpose  of  placing  it  in 
funds  to  meet  the  purchase  price,  but  which  funds  were  nev- 
er so  applied,  because  the  bank  became  insolvent,  cannot 
compel  the  vendor  of  the  goods  and  a  bona  fide  holder  of 
the  draft  to  interplead,  since  one  claims  for  goods  sold  and 
the  other  on  the  draft.8  It  is  not  necessary,  however,  that 
the  amount  claimed  by  the  persons  against  whom  the  relief 
is  asked  should  be  the  same.  Bills  of  interpleader  have  been 
maintained  where  the  several  claimants,  instead  of  claiming 
the  whole  fund  or  matter  in  dispute,  have  claimed  different 
portions  of  the  fund,  when  the  aggregate  of  all  the  claims 
exceeded  the  full  amount  of  the  fund;  as  in  the  case  of  a 
contract  for  the  construction  of  a  public  building  for  a  spec- 
ified sum,  where  portions  of  the  contract  price  were  claimed 
by  subcontractors  and  material  men,  the  total  amount  of 
whose  claims  exceeded  such  contract  price.*  And  a  land- 

§  325.  i  Pom.  Eq.  Jur.  §  1322;  Crane  v.  McDonald,  118  N.  T.  648, 
654,  23  N.  E.  991. 

2  Adams,  Eq.  p.  203;  Dodd  v.  Bellows,  29  N.  J.  Eq.  127;  Salisbury 
Mills  v.  Townsend,  109  Mass.  115;  City  Bank  v.  Bangs,  2  Paige  (N. 
Y.)  r>70. 

s  Bassett  v.  Leslie,  123  N.  Y.  39(3,  25  N.  E.  386.  So,  also,  where 
a  purchaser  of  goods  was  sued  by  the  seller  for  the  price,  and  was 
also  sued  in  trover  by  a  person  who  alleged  himself  to  be  the  real 
owner,  it  was  held  not  to  be  a  case  of  interpleader,  for  the  parties 
were  not  seeking  the  same  thing.  One  was  endeavoring  to  obtain 
the  price  of  the  goods,  and  the  other  damages  for  their  conversion. 
Olyn  v.  Duesbury,  11  Sim.  139.  See,  also,  Wilkinson  v.  Searcy,  74 
Ala.  243;  Blue  v.  Watson,  59  Misfl.  «19. 

«  School  Dist  No.  1  of  Grand  Haven  v.  Weston,  31  Mich.  85;  New- 
hall  v.  Hastens,  70  111.  15ti;  Yates  v.  Tisdale,  3  Edw.  Ch.  (N.  Y.)  71. 


§   325)  INTERPLEADER.  643 

owner  whose  property  has  been  taxed  in  different  amounts 
by  two  towns  may  maintain  an  interpleader  to  compel  them 
to  litigate  the  question  as  to  who  has  jurisdiction  to  levy  the 
tax,  notwithstanding  the  difference  in  amount.' 

Privity  of  Title. 

The  doctrine  has  been  declared  that,  where  there  is  no 
privity  of  title  between  the  claimants,  and  their  titles  are  sep- 
arate and  independent,  and  not  derived  from  a  common 
source,  equity  would  afford  no  relief  to  the  person  holding 
the  property,  but  he  was  compelled  to  defend  himself  as  well 
as  he  could  against  each  separate  demand.  The  refusal  of 
equity  to  intervene  in  such  a  case  was  because  it  would  not 
assume  the  right  to  try  merely  legal  titles  upon  a  contro- 
versy between  different  parties  where  there  was  no  privity 
of  contract  between  them  and  the  third  person  who  called 
for  the  interpleader.6  This  doctrine  has  been  criticised  by 
many  of  the  later  cases,  and  some  have  ignored  it  altogeth- 
er. In  England,  and  in  many  of  the  states  of  this  country, 
it  seems  to  have  been  abrogated  partly  by  statute  and  part- 
ly by  judicial  decisions.7  Mr.  Pomeroy,  referring  to  this 
rule,  says  that :  "It  is  a  manifest  imperfection  of  the  equity 
jurisdiction  that  it  should  be  so  limited.  A  person  may  be 
and  is  exposed  to  danger,  vexation,  and  loss  from  conflict- 
ing independent  claims  to  the  same  thing,  as  well  as  from 
claims  that  are  dependent ;  and  there  is  certainly  nothing  in 
the  nature  of  the  remedy  which  need  prevent  it  from  being 
extended  to  both  classes  of  demands."  * 

Complainant  to  Have  no  Beneficial  Interest. 

The  complainant  must  be  a  mere  stakeholder,  entirely  in- 
different between  the  conflicting  claimants.9  He  must  be 

B  Porn  v.  Fox,  61  N.  Y.  264;  Thomson  v.  Ebbets,  Hopk.  Ch.  (N. 
T.)  272. 

«  Story,  Eq.  Jur.  §  820;  Crawshay  v.  Thornton,  2  Mylne  &  C.  1, 
19-24;  Pearson  v.  Cardon,  2  Russ.  &  M.  606,  609-612;  Third  Nat. 
Bank  v.  Lumber  Co.,  132  Mass.  410. 

T  Code  Civ.  Proc.  N.  Y.  §  820;  Code  Oiv.  Proc.  Cal.  §  38G;  Atten- 
borough  v.  Dock  Co.,  3  C.  P.  Div.  450;  Crane  v.  McDonald,  118  N.  Y. 
648,  23  N.  E.  991. 

s  Pom.  Eq.  Jur.  §  1324,  note. 

•  Wing  v.  Spalding,  64  Vt.  83,  23  Atl.  615;  Baltimore  &  O.  R.  Co. 
T.  Arthur,  90  N.  Y.  234;  Appeal  of  Bridesburg  Mfg.  Co.,  106  Pa.  275; 
Killian  v.  Ebbinghaus,  110  U.  S.  508,  4  Sup.  Ct.  232,  28  L.  Ed.  246; 


644  ANCILLARY    REMEDIES.  (Ch.   25 

ready  and  willing  at  all  times  to  deliver  the  thing,  to  pay  the 
debt,  or  perform  the  duty  to  or  for  the  claimant  entitled 
thereto,  without  any  deduction  or  charge.  Hence  one  who 
claims  a  commission  out  of  the  property  or  funds  in  his  pos- 
session, or  a  lien  thereon,  cannot  maintain  a  bill  of  inter- 
pleader ; 10  nor  can  one  who  is  not  in  possession  of  the  prop- 
erty which  is  the  subject  of  the  claim,  or  who  has  put  one  of 
the  claimants  in  possession  thereof.11  So,  where  the  com- 
plainant claims  to  retain  from  the  amount  in  his  hands  an 
alleged  indebtedness  for  freight,  he  will  not  be  permitted  to 
maintain  an  action  of  interpleader.  The  amount  due  can- 
not be  the  subject  of  controversy  in  such  a  suit,  and  the  dif- 
ference between  the  debt  claimed  by  one  of  the  defendants 
and  the  sum  which  the  plaintiff  is  willing  to  pay  presents  an 
insuperable  objection  to  its  prosecution.11 

No  Independent  Personal  Liability. 

If  the  complainant  has  incurred  an  independent  personal 
liability  to  either  claimant,  he  will  not  be  permitted  to  main- 
tain a  bill  of  interpleader.1*  A  sheriff  who  has  seized  prop- 
erty by  fraud  on  an  execution  cannot  compel  a  claimant  of 
the  property  to  interplead  with  the  execution  creditor,  since 
the  sheriff  has  incurred  a  liability  to  the  claimant,  if  it  should 
turn  out  that  the  property  belongs  to  such  claimant.14  And 
where  a  defendant  is  sued  by  his  landlord,  or  an  agent  b? 
his  principal,  a  claim  by  a  third  person  adverse  to  the  land- 
lord or  principal  will  not  warrant  a  bill  of  interpleader,18  un- 

Williams  v.  Matthews,  47  N.  J.  Eq.  196,  20  AtL  2G1;  Sprague  v. 
West,  127  Mass.  471. 

10  Mitchell  v.  Hayne,  2  Sim.  &  S.  63;   Crass  v.  Railroad  Co.,  96 
Ala.  447,  11  South.  480. 

11  Burnett  v.  Anderson,  1  Mer.  405;  Killian  v.  Ebbinghaus,  110  U. 
S.  568,  4  Sup.  Ct  232,  28  L.  Ed.  246;   Stone  v.  Reed,  152  Mass.  179, 
25  N.  E.  49;  Mt  llolly,  L.  &  M.  Turnpike  Co.  v.  Ferree,  17  N.  J.  Eq. 
117. 

12  Baltimore  &  O.  R.  Co.  v.  Arthur,  90  N.  Y.  234. 

«  Orawshay  v.  Thornton.  2  Mylne  &  O.  1,  19;  Cullen  v.  Dawson, 
24  Minn.  66;  National  Ins.  Co.  v.  Pingrey,  141  Mass.  411,  6  N.  E. 
93;  Wakeman  v.  Kingsland,  46  N.  J.  Eq.  113,  18  Atl.  680;  Tyus  v. 
Eust,  37  Ga.  574,  95  Am.  Dec.  365. 

i«  Slingshy  v.  Boulton,  1  Ves.  &  B.  334;  Shaw  v.  Coster,  8  Paige 
(N.  Y.)  339,  35  Am.  Dec.  690.  Statutes  in  most  of  the  states  give  a 
claimant  of  property  seized  on  execution  the  right  to  intervene  and 
litigate  his  title  with  the  execution  creditor. 

nDungey  v.  Aujjove,  2  Ves.  Jr.  304;    Snodgrass  v.  Butler,  54 


§    326)  RECEIVERS.  645 

less  it  originates  in  the  landlord's  or  principal's  own  act, 
done  after  the  commencement  of  the  tenancy  or  agency, 
creating  a  doubt  as  to  who  is  the  true  landlord  or  princi- 
pal to  whom  the  tenancy  or  agency  refers.18  In  like  man- 
ner a  bill  of  interpleader  will  not  lie  if  the  party  seeking  re- 
lief has  acknowledged  title  in  one  of  the  claimants,  and  has 
thus  incurred  an  independent  liability  to  him.11 


BECEIVERS. 

326.  A  receiver  is  a  person  standing  indifferent  be- 
tween the  parties,  appointed  by  a  court  of 
equity  to  take  charge  of  the  fund  or  prop- 
erty in  controversy  under  direction  of  the 
court,  and  during  the  continuance  of  such 
controversy,  -when  it  does  not  seem  proper 
that  either  party  should  retain  it.1 

Unlike  discovery  and  kindred  ancillary  remedies,  the  law 
of  receivers  is  a  subject  of  growing  importance,  and  it  fur- 
nishes one  of  the  most  remarkable  examples  of  the  expan- 
sive powers  of  courts  of  equity.  The  remedy  is  of  English 
origin,  but  it  has  been  largely  developed  in  this  country  dur- 
ing the  past  quarter  of  a  century.  The  object  of  a  receiv- 
ership is  to  preserve  the  fund  or  property  from  removal  be- 
yond the  jurisdiction  of  the  court,  or  from  spoliation,  waste, 
or  deterioration  pending  litigation,  or  during  the  minority  of 
infants.1  The  receiver  is  an  officer  of  the  court  appointing 

Miss.  45;  De  Zouche  v.  Garrison,  140  Pa.  430,  21  Atl.  450.  These 
cases  rest  on  the  ground  that  the  tenant  or  the  agent  is  estopped 
to  deny  the  title  of  his  landlord  or  of  his  principal. 

is  Cowtan  v.  Williams,  9  Ves.  107;  Gibson  v.  Goldthwalte,  7  Ala. 
281,  42  Am.  Dec.  592;  Ketcham  v.  Coal  Co.,  88  Ind.  515. 

17  Crawshay  v.  Thornton,  2  Mylne  &  O.  1,  19-24;  Jew  T.  Wood, 
Craig  &  P.  185;  Pfister  v.  Wade,  56  Cal.  43. 

§  326.  i  Booth  v.  Clark,  17  How.  322,  15  L.  Ed.  164;  Baker  v. 
Bachus'  Adm'r,  32  111.  79;  Chautauque  Co.  Bank  T.  White,  6  Barb. 
(N.  Y.)  589;  High,  Rec.  §  1;  Beach,  Rec.  §  1;  Kerr,  Rec.  p.  2. 

2  Myers  v.  Estell,  48  Miss.  401;  Taylor  v.  Railroad  Co.  (O.  C.)  7 
Fed.  385;  Ellis  y.  Railroad  Co.,  107  Mass.  28;  Beverley  v.  Brooke,  4 
Grat  (Va.)  187. 


646  ANCILLARY    REMEDIES.  (Ch.    25 

him,  and  not  an  agent  of  the  parties.8  His  possession  is 
possession  of  the  court,4  and  any  attempt  to  disturb  it  is  a 
contempt,  punishable  as  such.8 

The  appointment  of  a  receiver,  like  the  granting  of  an  in- 
terlocutory injunction,  determines  nothing  as  to  the  ultimate 
rights  of  the  parties ;  8  and  in  dealing  with  the  application 
for  the  appointment  of  a  receiver  it  is  the  duty  of  the  court 
to  confine  itself  directly  to  the  point  upon  which  it  is  asked 
to  decide,  and  not  to  go  into  the  merits  of  the  case.7  The 
appointment  of  a  receiver  rests  in  the  sound  discretion  of  the 
court.8  In  exercising  such  discretion,  the  court  is  controlled 
by  certain  well-established  rules.  The  power  is  deemed  one 
of  the  most  responsible  duties  which  a  court  of  equity  is 
called  upon  to  perform,  since  its  effect  is  to  deprive  the  de- 
fendant of  his  possession  before  a  final  decree,  which  may 
work  great,  and  even  irreparable,  injury,  though  the  prop- 
erty taken  into  the  custody  of  the  court  may  finally  be  re- 
stored. The  power  is  therefore  exercised  with  great  cau- 
tion and  circumspection.9  The  plaintiff  must  show :  (i)  That 
he  has  either  a  clear  right  to  the  property  itself,  or  that  he 
has  some  lien  upon  it,  or  that  the  property  constitutes  a  spe- 
cial fund,  to  which  he  has  a  right  to  resort  for  the  satisfac- 
tion of  his  claim;  and  (2)  that  the  defendant  obtained  pos- 
session of  the  property  by  fraud,  or  that  the  property  itself 
or  the  income  arising  from  it  is  in  danger  of  loss  from  the 
neglect,  waste,  misconduct,  or  insolvency  of  the  defend- 
ant.1* 

»  Davis  v.  Duke  of  Marlborough,  2  Swanst.  125;  Davis  v.  Gray. 
16  Wall.  218,  21  L.  Ed.  447;  Hooper  v.  Winston,  24  111.  353;  Morrill 
V.  Noyes,  56  Me.  463.  96  Am.  Dec.  48(5. 

<  Kllicott  v.  Wnrford,  4  Md.  85;   Kunyon  v.  Bank,  4  N.  J.  Eq.  480. 

»  Beverley  v.  Brooke,  4  Grat  (Va.)  187,  211;  Ila/.olri-f,'  v.  Bron- 
•ugh,  78  Ky.  62;  Chafee  v.  Quidnick  Co.,  13  R.  I.  442;  Secor  v. 
Railroad  Co.,  7  Blss.  513,  Fed,  Ca.«.  No.  12.605. 

•  Ilutfonin  v.  Basely,  13  Vea.  107;    Beverley  v.  Brooke,  4  Grat. 
(Va.)  20S;    Ellis  v.  Railroad  Co.,  107  Mass.  1;    Ex  parte  Dunn.  8  S. 
C.  207;    Chase's  Case,  1   Bland   (Md.)   206-213,   17   Am.   Deo.   277; 
Leavitt  v.  Yates,  4  Edw.  Ch.  (X.  Y.)  1(52. 

i  Skinner's  Co.  v.  Society,  1  Mylne  &  C.  164. 

•  Skip  v.  Harwood,  3  Atk.  564;  Sage  v.  Railroad  Co.,  125  U.  S.  361, 
8  Sup.  Ct.  887,  31  L.  Ed.  694;    Chicago  &  A.  Oil  &  Mining  Co.  v. 
Petroleum  Co.,  57  Pa.  83;  Ashurst  v.  Lehman,  86  Ala.  371,  5  South. 
731. 

•  Ashurst  v.  Tvehman,  86  Ala.  371,  5  South.  731. 

ao  Mays  v.  Rose,  Freein.  Ch.  (Miss.)  703;  EUett  v.  Newman,  92  N. 


§  327)  RECEIVERS.  647 

SAME— IN  WHAT    CASES    RECEIVERS  WILL   BE   AP- 
POINTED. 

327.  Subject  to  the  rules  already  stated,  a  receiver 
•will  be  appointed 

(a)  Where  the  person  entitled  to  the  possession  of 

the  property  pending  the  litigation  or  a 
judicial  proceeding  is  incompetent  to  man- 
age or  care  for  it;  as  in  the  case  of  infants, 
lunatics,  etc. 

(b)  While   the  parties   in  litigation   are   equally 

entitled  to  possession,  but  the  circum- 
stances are  such  that  it  is  not  proper  for 
either  of  them  to  retain  control;  as  in  the 
case  of  litigation  between  partners,  co-ten- 
ants, etc. 

(c)  Where  one  of  the  parties  is  entitled  to  posses- 

sion of  the  property,  but  there  is  danger 
of  its  misapplication  or  spoliation  by  him 
to  the  detriment  of  the  other  party. 

(d)  By    virtue   of   statute  in   proceedings  to  dis- 

solve and  wind  up  the  affairs  of  corpora- 
tions. 

(e)  To    reach    property    of    a  judgment    debtor 

•which  cannot  be  seized  on  execution. 

C.  510;  Blomlheim  v.  Moore,  11  Md.  3G5;  Ashurst  v.  Lehman,  86 
Ala,  371,  5  South.  731;  Elwood  v.  Bank,  41  Kan.  475,  21  Pac.  G73; 
Bainbrigge  v.  Baddeley,  3  Macn.  &  G.  413;  Owen  v.  Homan,  Id 
378,  412.  The  case  of  Blondheim  v.  Moore,  11  Md.  365,  has  been  fre- 
quently quoted  as  a  leading  case  upon  the  question  of  the  exercise 
of  the  discretion  of  the  court  in  the  appointment  of  receivers.  In 
that  case  the  following  rules  were  laid  down:  (1)  That  the  power 
of  appointment  is  a  delicate  one,  and  is  to  be  exercised  with  great 
circumspection;  (2)  that  it  must  appear  that  the  claimant  has  a  ti- 
tle to  the  property,  and  the  court  must  be  satisfied  by  affidavit  that 
a  receiver  is  necessary  to  preserve  the  property;  (3)  that  there  is  no 
case  In  which  the  court  appoints  a  receiver  merely  because  the 
measure  can  do  no  harm;  (4)  that  fraud  or  imminent  danger,  if  the 
intermediate  possession  should  not  be  taken  by  the  court,  must  be 


648  ANCILLARY    REMEDIES.  (Ch     25 

Receivers  of  Property  of  Infants  and  Lunatics. 

A  court  of  equity  will,  upon  a  proper  case  being  made  out, 
protect  the  estate  of  an  infant  by  appointing  a  receiver ;  as 
where  no  guardian  exists,1  or  where  the  parent  of  the  in- 
fant, in  possession  of  his  property,  is  squandering  it.2  So, 
also,  in  the  case  of  a  lunatic,  where  the  person  appointed  as 
guardian  or  committee  declines  to  act.8  It  was  formerly 
the  practice  of  courts  of  chancery  to  appoint  a  receiver  of  a 
decedent's  estate  pending  litigation  over  the  probate  of  his 
will,4  but  now  the  practice  is  falling  into  disuse,  because 
courts  of  probate  have  been  empowered  by  statute  to  ap- 
point a  special  administrator  during  such  a  contest. 

Receiver  of  Partnership  and  for  Tenants  in  Common. 

Independent  of  statutory  authority,  a  court  of  equity  may 
appoint  a  receiver  of  a  partnership;  but  the  jurisdiction  is 
exercised  with  great  caution,  and  only  in  cases  where  it  is 
necessary  for  the  preservation  of  the  rights  and  interests  of 
all  the  parties  to  the  partnership  agreement.  When  it  ap- 
pears that  a  dissolution  must  be  declared,  "it  follows  very 
much  as  a  matter  of  course  that  a  receiver  must  be  appoint- 
ed." e  This  is  especially  so  if,  after  dissolution,  the  parties 
cannot  agree  among  themselves  as  to  the  disposition  and 
control  of  the  partnership  property.*  And  after  a  dissolu- 
tion of  the  firm,  whether  by  mutual  agreement  or  by  death 
of  one  of  its  members,  a  receiver  will  be  appointed  where  it 
appears  that  the  parties  in  possession  are  misconducting 

clearly  proved;   (5)  that,  unless  the  necessity  be  of  the  most  strin- 
geiit  character,  the  court  will  not  appoint  a  receiver  until  the  de- 
fendant Is  first  heard  In  response  to  the  application. 
{  327.     i  Hicks  v.  Hicks,  3  Atk.  273. 

•  Butler  v.  Freeman,  1  Amb.  303;  In  re  Oormicks,  2  Ir.  R.  Eq.  204. 
»  Ex  parte  Warren,  10  Ves.  621.    Also,  after  the  lunatic's  death. 

ft  receiver  will  be  appointed  until  a  determination  of  the  question  as 
to  who  Is  entitled  to  the  estate.    In  re  Colvin.  3  Md.  Ch.  388. 

«  King  v.  King,  6  Ves.  172;  Atkinson  v.  Henshaw,  2  Ves.  &  B.  85. 

•  Lord  Eldon  in  Goodman  v.  Whitcomb,  Uac  &.  W.  589;   McElvey 
T.  Lewis,  76  N.  Y.  373,  375. 

•  Jordan  v.  Miller,  75  Va.  442;   New  v.  Wright,  44  Miss.  202;   Al- 
ton v.  Hawley,  6  Fla,  164,  63  Am.  Dec.  198;  Barnes  v.  Jones,  91  Ind. 
161.    Wrongful  exclusion  of  one  partner  from  management  of  a 
firm  Is  ground  for  the  appointment  of  a  receiver.    Katz  v.  Brewing- 
ton,  71  Md.  79,  20  AtL  139. 


§  327)  RECEIVERS.  649 

themselves,  or  that  the  assets  are  in  peril.1  But  a  receiver 
will  not  be  appointed  upon  the  termination  of  a  partnership 
contract,  upon  the  application  of  one  of  the  partners,  be- 
cause of  a  disagreement  as  to  the  meaning  of  the  terms  of 
the  contract,  in  the  absence  of  misconduct  or  mismanage- 
ment on  the  part  of  the  other.' 

As  between  tenants  in  common,  the  general  rule  is  that  a 
receiver  will  not  be  appointed  unless  one  excludes  the  other 
from  the  possession  and  enjoyment  of  the  property ; 8  but, 
as  between  tenants  in  common  of  mining  property,  a  more 
liberal  rule  prevails.10 

Receivers  of  Decedent's  Estate  and  Estates  in  Trust. 

A  court  of  equity  may,  if  a  proper  case  be  shown,  dis- 
possess an  executor,  administrator,  or  trustee,  and  appoint 
a  receiver  of  the  decedent's  estate  or  the  trust  property.  If 
waste  or  improper  use  of  funds  or  misconduct  can  be  shown 
against  an  executor  or  administrator,  the  court  may  take  the 
property  out  of  his  hands ;  but  the  court  will  not  act  on 
slight  grounds.11  Where  there  is  a  contest  over  the  pro- 
bate of  a  will,  and  the  legal  title  or  the  rights  of  the  parties 
interested  are  endangered,  a  receiver  may  be  appointed.12 
But  receivers  will  not  be  appointed  in  suits  for  the  adminis- 
tration of  estates  unless  the  executor  or  administrator -has 
been  guilty  of  misconduct,  waste,  misuse  of  assets,  and  there 
is  real  danger  of  loss; 13  nor  will  a  court  of  equity  interfere 
by  the  appointment  of  a  receiver  with  the  possession  of  a 

»  Word  v.  Word,  90  Ala.  81,  7  South.  412;  Bufkin  v.  Boyce,  104 
Ind.  53,  3  N.  E.  615. 

B  Btifkin  v.  Boyce,  104  Ind.  53,  3  N.  E.  615. 

•  Norway  v.  Rowe,  19  Ves.  159;  Williams  Y.  Jenkins,  11  Ga.  595; 
Pierce  v.  Pierce,  55  Mich.  G29,  22  N.  W.  81;  Baughman  v.  Reed,  75 
Gal.  319,  17  Pac.  222;  Low  v.  Holmes,  17  N.  J.  Eq.  150;  Vaughan 
y.  Vincent,  88  N.  C.  116;  Varnum  r.  Leek,  65  Iowa,  751,  23  N.  W.  151. 

10  Jefferys  v.  Smith,  1  Jac.  &  W.  298;   Parker  v.  Parker,  82  N.  C. 
165. 

11  Beverley  v.  Brooke,  4  Grat  (Va.)  208;  Smith  v.  Smith,  2  Younge 
&  C.  361;    Haines  v.  Carpenter,  1  Woods,  265,  266,  Fed,  Oas.  No. 
6,905;   Hill  v.  Arnold,  79  G  a.  367,  4  S.  E.  751. 

12  Schlecht's  Appeal,  60  Pa.  172;   In  re  Colvin,  3  Md.  Ch.  278. 

i»  Anon.,  12  Ves.  4;  Stan-ley  v.  Rabe,  McMul.  Eq.  (S.  C.)  22; 
Price's  Ex'x  v.  Price's  Ex'rs,  23  N.  J.  Eq.  428;  Calhoun  v.  King,  5 
Ala.  525;  Hagenbeck  v.  Arena  Co.  (C.  C.)  59  Fed.  14, 


650  ANCILLARY    REMEDIES.  (Ch.    25 

trustee,  unless  it  is  clearly  shown  that  the  trust  estate  is  en- 
dangered by  his  misconduct.14 

Receivers  for  Mortgagees  and  Corporate  Bondholders. 

In  England,  and  in  those  states  where  the  legal  title  to 
real  estate  vests  in  the  mortgagee,  a  receiver  will  not  be  ap- 
pointed at  his  instance  to  take  possession  of  the  mortgaged 
premises  and  of  the  rents  and  profits,  since  he  can  recover 
them  in  ejectment;15  but  in  those  states  where  a  mort- 
gage is  regarded  as  a  mere  lien  on  the  land,  the  mortgagee 
is  entitled  to  a  receiver  pending  foreclosure  proceedings, 
where  the  mortgaged  premises  are  an  inadequate  security, 
the  mortgagor  is  insolvent,  and  there  is  good  reason  to  be- 
lieve that  the  premises  will  be  wasted  or  deteriorated  in  his 
hands.16  For  similar  reasons, — insolvency  of  the  mortga- 
gor and  the  inadequacy  of  the  security, — a  court  of  equity 
will,  at  the  suit  of  bondholders  secured  by  mortgage  on  the 
property  of  a  railroad  company,  appoint  a  receiver  in  aid 
of  the  foreclosure  proceedings ; 1T  and  in  these  cases  the 
functions  and  duties  of  the  receiver  are  not  merely  to  keep 
the  property  in  his  custody,  but  to  operate  and  manage  it 
until  the  litigation  is  finally  terminated,  being  subject  to  all 
the  responsibilities  of  a  common  carrier.18  In  exceptional 
cases  courts  of  equity  have  even  authorized  the  receiver  to 
extend  and  complete  lines  of  road,  when  necessary  to  save 
a  land  grant,  or  to  the  successful  operation  of  the  road.19 
One  remarkable  result  of  this  extension  of  the  powers  of 
receivers  should  be  noticed  in  this  connection :  The  indebt- 
edness incurred  by  the  receiver  in  thus  operating  and  man- 

i*  Evans  v.  Coventry,  5  De  Gex,  M.  &  G.  911,  016;  Richards  v. 
r.anvtt,  5  111.  App.  510;  Cohen  v.  Morris,  70  Ga.  313. 

"Berney  v.  Sewell,  1  Jac.  &  W.  G48;  Sturch  v.  Young,  5  Beav. 
G57;  Williams  v.  Robinson,  16  Conn.  517. 

10  Lowell  v.  Doe,  44  Minn.  144,  46  N.  W.  297;  Holleubeck  v.  Don- 
nell.  04  N.  Y.  342;  United  States  Trust  Co.  v.  Railroad  Co.,  101  N. 
Y.  483,  5  N.  E.  316;  Schreil>er  v.  Carey,  48  Wls.  208,  4  N.  W.  124. 

"  Mercantile  Trust  Co.  v.  Railroad  Co.  (C.  C.)  36  Fed.  221;  Penn- 
sylvania Co.  for  Insurance  on  Lives  v.  Trust  Co.,  2  U.  S.  App.  COG.  5 
O.  C.  A.  63,  55  Fed.  131;  High,  Rec.1  §  376  et  seq. 

i*  Beach,  Rec.  §  3T>!>. 

t»  Kennedy  v.  Railroad  Co.,  5  Dill.  519,  Fed.  Cas.  No.  7,707;  Je- 
rome v.  McCarter,  94  U.  S.  734,  738.  24  L.  Ed.  136  (canal);  Bank  of 
Montreal  v.  Railroad  Co.,  48  lowu,  518. 


§    327)  RECEIVERS.  651 

aging  the  road  is  entitled  to  priority  over  the  debt  of  the 
bondholders,  secured,  as  it  is,  by  mortgage.  Having  re- 
quested the  court  to  take  control  of  the  property,  and  main- 
tain it  as  a  going  concern  for  their  benefit,  they  are  es- 
topped from  denying  that  the  expenses  of  such  manage- 
ment are  entitled  to  priority,  forming,  as  they  do,  a  part  of 
the  costs  of  the  litigation.20  To  enable  the  receiver  to  raise 
funds  for  the  operation  and  maintenance  of  the  road,  the 
court  generally  authorizes  the  issuance  of  receivers'  certifi- 
cates ;  and,  on  the  distribution  of  the  proceeds  of  sale  of  the 
mortgaged  premises,  the  holders  of  these  certificates  are  en- 
titled to  priority  over  the  bondholders.*1 

Receivers  of  Corporations* 

The  court  of  chancery  never  assumed  jurisdiction  in  cases 
involving  a  forfeiture  of  corporate  franchises  until  author- 
ized by  statute.  It  declined,  unless  authorized  by  statute,  to 
sequestrate  corporate  property  through  the  medium  of  a  re- 
ceiver, or  to  dissolve  corporate  bodies,  or  to  restrain  the 
usurpation  of  corporate  powers.22  The  jurisdiction  exer- 
cised by  courts  of  equity  to  appoint  receivers  of  corporations 
is,  therefore,  wholly  statutory.  In  most  of  the  states  of  the 
Union,  however,  this  jurisdiction  has  been  conferred  by  stat- 
ute upon  such  courts ;  but  they  are  very  cautious  in  its  ex- 

20  Hale  v.  Railroad  Go.,  60  N.  H.  333;    Miltenberger  v.  Railway 
Co.,  106  U.  S.  286,  1  Sup.  Ct  140,  27  L.  Ed.  117;  Central  Trust  Co.  v. 
Railway  Co.  (O.  C.)  46  Fed.  26;   Kneeland  v.  Trust  Co.  136  U.  S.  89, 
10  Sup.  Ct.  950,  34  L.  Ed.  379.     Some  of  the  cases  hold  that  the  ex- 
penses of  a  receivership  are  entitled  to  priority  over  the  mortgage 
bondholders,  though  they  have  not  consented  to  the  receivership  or 
the  expenses,  on  the  theory  that  railroads  are  quasi  public  corpo- 
rations, and  that  public  necessities  require  their  continued  opera- 
tion.    Meyer  v.  Johnston,  53  Ala.  237,  348;    Kneeland  v.  Machine 
Works,  140  U.  S.  592,  11  Sup.  Ct.  857,  35  L.  Ed.  543;    Kneeland  v. 
Luce,  141  U.  S.  491,  12  Sup.  Ct.  32,  35  L.  Ed.  830.     This  last  propo 
Bitioii  has  been  severely  criticised,  on  the  ground  that  to  give  pri- 
ority to  the  receivership  expenses  over  a  mortgage  of  earlier  date  is, 
in  effect,  impairing  the  obligation  of  a  contract  in  violation  of  the 
federal  constitution. 

21  Credit  Co.  of  London  v.  Railroad  Co.  (O.  C.)  15  Fed.  46;    Union 
Trust  Co.  v.  Railway  Co.,  117  U.  S.  437,  6  Sup.  Ct.  809,  29  L.  Ed.  963. 

22  Decker  v.  Gardner,  124  X.  Y.  334,  26  N.  E.  814,  11  L.  R.  A.  480; 
Neall  v.  Hill,  16  Cal.  145,  76  Am.  Dec.  508;  Folger  v.  Insurance  Co., 
99  Mass.  207,  96  Am.  Dec.  747. 


652  ANCILLARY    REMEDIES.  (Ch.   25 

ercise,"  and  the  receiver  is  regarded  in  the  light  of  a  trus- 
tee for  the  creditors  and  stockholders.** 

Receivers  in  Aid  of  Judgment  Creditors. 

A  judgment  creditor,  who  has  issued  an  execution  on  his 
judgment,  which  has  been  returned  unsatisfied,  has  a  right 
to  come  into  equity  for  the  appointment  of  a  receiver  of  his 
judgment  debtor's  property,  which  cannot  be  sold  under  an 
execution  at  law.25  The  receiver  in  such  cases  is  vested, 
not  only  with  the  title  and  rights  possessed  by  the  judgment 
debtor,  but  also  with  the  right  of  the  judgment  creditor  to 
set  aside  fraudulent  conveyances  made  by  the  debtor.2*  In 
many  of  the  states  statutes  exist  which  provide  for  the  ex- 
amination of  the  judgment  debtor  concerning  his  property 
after  an  execution  has  been  returned  unsatisfied,  and  author- 
ize the  appointment  of  a  receiver  of  property  disclosed  upon 
such  examination.  Such  proceedings  are  known  as  proceed- 
ings supplementary  to  execution,  and  have,  to  a  greater  or 
less  extent,  superseded  judgment  creditors'  bills  in  equity. 

««  High,  Rec.  §  289;   Oakley  v.  President  etc.,  2  N.  J.  Eq.  173. 

**  High,  Rec.  §§  314,  315;  Curtis  v.  Leavitt,  15  N.  Y.  44;  Attorney 
General  v.  Insurance  Co.,  77  N.  Y.  272. 

«  Curling  v.  Marquis  Townshend,  19  Ves.  632;  Bloodgood  v.  Clark, 
4  Paige  (N.  Y.)  574;  Osborn  v.  Heyer,  2  Paige  (N.  Y.)  342;  Johnson 
T.  Tucker,  2  Tenn.  Ch.  398. 

*«  Green  v.  Bostwick,  1  Sandf.  Ch.  (N.  Y.)  185;  Porter  v.  Williams, 
9  N.  Y.  142.  59  Am.  Dec.  519;  Hamlin  v.  Wright,  23  Wls.  491. 


TABLE  OF  CASES  CITED. 


[THE  FIGURES  REFER  TO  PAGES.] 


Abbey  T.  Deyo,  343. 
Abbott  v.  Creal,  317. 

v.  Godfrey's  Heirs,  477. 

v.  Treat,  290. 

Aberdeen  R.  Co.  T.  Blakie,  329. 
Abernethy  v.  Hutchinson,  699. 
Acer  v.  Hotchkiss,  513. 

v.  Westcott,  149,  150. 
Acheson  v.  Miller,  509. 
Ackerman  v.  Hunsicker,  148,  458, 

459. 

Ackman  T.  Jaster,  295. 
Ackroyd  v.  Smithson,  229,  403. 
Ackworth  v.  Ackworth,  219. 
Acton  v.  Waddington,  487. 

y.  Woodgate,  385. 
Adair  v.  Adair,  450. 

T.  Brimmer,   428. 

v.  Cummin,  308. 
Adams  v.  Adams,  419,  557. 

T.  Buchanan,  489. 

v.  Clifton,   441. 

v.  Corriston,   450. 

v.  Drake,    512. 

T.  Hayden,  147. 

T.  Johnson,   476. 

v.  Jones,    238. 

T.  Messinger,   90,  528. 

V.  Parker,    459. 

v.  Pilcher,  456. 

T.  Railroad  Co.,  595. 

v.  Sayre,   325. 

T.  Smilie,  471. 

T.  Soule,    290. 

v.  Vanderbeck,    160. 

v.  Wheeler,  275,  619. 
Adams  Trust,  In  re,  358. 
Adams  &  Kensington  Vestry,  In  re, 

80,   369. 

Adderley  v.  Dixon,  529. 
Aderholt  v.  Embry,  522. 
Adler  y.  Pin,  176. 
Adsit  v.  Adsit,  191,  196. 
^Etna  Life  Ins.  Co.  v.  Bishop,  150. 

v.  Hesser,  14.7. 

T.  Middleport,  511,  513. 

T.  Sellers,  317. 
Affleck  T.  Affleck.  281. 
Agnew  v.  Bell.  508. 


Agra  &  Masterman's  Bank,  In  re, 

oOo. 

Ahl's  Appeal,  436. 
Ahrend  v.  Odiorne,  485,  488. 
Aiken  v.  Bruen,  160. 

v.  Gale,  471. 
Ajello  T.  Worsley,  46. 
Akerly  v.  Vilas,  305. 
Akin  v.  Kellogg,  197,  290. 
Albrecht  v.  Lumber  Co.,  39. 
Alden  v.  Parish,  387. 
Alderson  v.  White,  456. 
Aldred's  Case,  589. 
Aldrich  v.  Cooper,  514. 

T.  Lewis,  34. 
Aldridge  v.  Aldridge,  320. 

v.  Dunn,  489. 
Alexander  v.  Caldwell,  159. 

v.  Ellison,   121,  480. 

v.  Hill,  470. 

T.  Hooks,  488. 

T.  Pendleton,  628. 

v.  Wunderlich,  541,  549. 
Aleyn  v.  Belchier,  345. 
Alger  T.  Anderson,  32. 
Alkire  v.  Alkire,  344. 
Allan  v.  Allan,  633. 

v.  Pray,  193. 

Alleghany    Baseball    Club  T.    Ben- 
nett, 577. 

Allen  v.  Allen,  55,  213,  214,  216, 
306. 

T.  Anderson,  189. 

T.  Berry,    76. 

T.  Brown,   278. 

v.  Buchanan,  91,  92. 

v.  Culver,  523. 

T.  Elder,   619. 

T.  Everly,  451. 

T.  Galloway,  265. 

v.  Hammond,   269,  270. 

T.  Hanks,  628. 

T.  Hawley,  648. 

v.  Hyde,  639. 

T.  Loring,   489. 

T.  McPherson.  286,  417. 

T.  Patton,  482. 

T.  Poole.  152. 

v.  Railroad   Co.,   13flL 

T.  Smith.   639. 

T.  Stevens,  391,  392. 


EATON.EQ. 


(653) 


654 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Allen  v.  Watts,  229. 

T.  Witbrow,   371. 

v.  Yeater,  278. 

v.  Young,  553. 
Alleyn  v.  Alleyn,  206. 
Ailing  v.  Cbatfield,  192,  194. 
Allison  v.  Drake,  153. 

v.  Ward,   291. 

Allison  Bros.  Co.  v.  Allison,  623. 
Allore  v.  Jewell,  317. 
Almy  v.  Reed,  250. 
Alta   Land   &  Water  Co.  r.  Han- 
cock, 593. 

Alvarez  v.  Brannan,  294. 
Alvord  v.  Smith,  310. 
Alworth  v.  Seymour,  536. 
Ambrose  T.  Ambrose,  362. 
American    Fire   Hose   Mfg.   Co.   T. 

Cornelius  Callaban  Co.,  596. 
American     Freehold     Land    Mortg. 

Co.  of  London  v.  Walker,  252. 
Ames  v.  Richardson,  79. 
Amphlett  v.  Parke.  241. 
Anderson  v.  Abbott,  184* 

v.  Armstead,  174. 

T.  Bank,  633. 

T.  Brinser,  138,  544. 

y.  Harvey's  Heirs,  585. 

v.  Hubble,   168. 

v.  May,  249. 

T.  Nagle,  120. 

v.  Roberts,  117. 
Anding  v.  Davis,  364. 
Andreas  T.  Hubbard,  515. 
Andrew  v.  Trinity  Hall,  190. 
Andrews  v.  Andrews,  275,  387. 

v.  Rabeock,  555. 

v.  Insurance  Co.,  176. 

v.  Mathews,   120. 

v.  Moen,   34. 

v.  Rice,  377. 
Andrus  v.  Coleman,  487. 
Angell,  In  re,  3S1. 

v.  An  pell.  G30.  636,  63& 

y.  Hadden,    640. 
Angier  v.  Apnew,  467. 
Angus  T.  Clifford,  28& 
Ankeny  v.  MofTett,  509. 
Ankotel  v.  Converse,  487. 
Annapolis  &  E.   R.   Co.   T.   Gantt, 

451. 
Anniston    Loan    &    Trust    Co.    T. 

Ward,  59. 

Anonymous,  522,  532,  649. 
Antcliff  v.  June,  311. 
Anthony  v.  Boyd,  274. 

v.  Wheeler,  128. 
Apperson  v.  Bolton,  192. 
Applebee,  In  re,  50. 
Appleton  v.  Bovd,  60. 
Arbuthnot  v.  Norton.  495. 
Archer  v.  MOBHP,  286. 
Argall  v.  Pitts,  467. 
Armistead  v.  Brooke,  523. 
Armour  v.  McMicheal,  160. 
Armstrong  v.  Rank.  71. 

v.  McKeln«-y,  245. 

T.  Toler,  72. 


Arndt  v.  Griggs,  89. 
Arnold  v.  Bright,  289. 

v.  Dixon,  236. 

v.  Hosiery   Co.,  295,  298. 
Arthur  v.  Uakes,  576. 
Ashby  v.  Palmer,  24ti. 
Ashton  v.  Corrigan,  533. 

v.  Thompson,  331. 
Ashton's  Appeal,   1UO,   163. 
Ashurst  v.  Lehman,  646,  647. 
Aslatt    v.    Corporation    of    South- 

hampton,  580. 
Aspiuwall  v.  Sacchi,  508. 
Astor  v.  Wells.  147. 
Atkinson  v.  Brooks,  161, 

v.  Henshaw,   648. 

v.  Leonard,  41,  42. 

T.  Sutton,    192 

v.  Ward,    439. 

v.  Webb,  205. 
Atlantic   Cotton   Mills   T.   Orchard 

Mills,  134. 

Atmore  v.  Walker,  483. 
Attenborough  v.  Dock  Co.,  643. 
Attorney    General    v.    Bishop    of 
Llandaff,  393. 

v.  Board,   579. 

T.  Cleaver,  29,  587. 

v.  Earl  of  Clarendon,  414. 

V.  Forbes,  579. 

v.  Gas     Consumers'     Co..    587. 
588 

v.  Gaskill.  633. 

T.  Gore,  384, 

v.  Hospital,  357. 

T.  Hubbuck,  226. 

v.  Insurance  Co.,  501,  652. 

v.  Ironmonger's  Co.,  393. 

T.  I^eeds  Corp.,  594. 

T.  Mayor,  etc.,  393. 

v.  Monro,  430. 

v.  Oglander.  393. 

v.  Parker,  387. 

v.  Pearson,  375. 

v.  Sibthorp,    252. 

v.  Soule,   388. 

v.  Steward,  587. 

v.  Woods.  588. 
Attwood  v.  Small,  295. 

v.  Taylor.  DO. 
Atwater  v.  Russell,  395. 
At  wood  v.  Beares.  138. 

v.  Fisk.  71,  76. 

Atwood's  Adm'r  v.  Wright,  294. 
Audenrt-id's  Appeal.   332. 
A  listen   v.  Taylor,  380. 
Austin  v.  Mfg.  Co.,  382. 

v.  Wacks,  551. 
Auter  v.  Miller,  74. 
Avery  v.  Clark,  487. 

v.  Ryan.  528. 

v.  Woolen  Co.,  32. 
Ayer  v.  Hawkins,  523. 
Ayers  v.  Lawrence,  605. 
Ayerst  v.  Jenkins,  314.  403» 
Aylward  v.  Kearney.  57. 
Ayres  T.  Randall,  402, 


CASES  CITED. 
[The  figures  refer  to  pages.] 


655 


B 


Babcock  v.  Case,  290.  294. 

v.  Eckler,  339,  340. 

T.  McCamant,  42,  285. 

v.  Stock- Yard  Co.,  590. 

v.  Wyman,  454. 
Backhouse  v.  Bonomi,  592. 
Bacon  v.  Bacon,  149,  432. 

v.  Cosby,  191. 

v.  Ransom,  370. 
Bacot  v.  Heyward,  421. 
Badger  v.  Badger,  54. 
Baer's  Appeal,  428. 
Bagley  v.  Peddle,  105,  108. 
Bagnall  y.  Villar,  467. 
Bagot's  Settlement,  In  re,  238. 
Baile  v.  Insurance  Co.,  533. 

v.  Briggs,  285. 
Bailey  v.  Bank,  246. 

v.  Collins,  573. 

v.  Galpin,   126,   147. 

v.  Hemenway,  407. 

v.  Ryder,  92,  534. 

v.  Winn,  451. 
Bainbrigge  v.  Baddeley,  647. 

v.  Blair,  443. 
Baird  v.  Tolliver,  102. 
Baker,  Appeal  of,  430. 

v.  Bachus'   Adm'r,  645. 

v.  Bradley.   329,  331. 

v.  Copenbarger,  245. 

v.  Gordon,  576. 

v.  Humphrey,  121,  162,  327. 

v.  Insurance  Co.,  172. 

v.  Kinsey,  505. 

v.  Martin,  434. 

v.  Mather,   149,  150. 

v.  Maxwell,  295. 

v.  Morris'  Adm'r,  57. 

T.  Pottmeyer,  575. 

v.  Read.  55. 

v.  Rockabrand,  93. 

v.  Selden,  597. 

v.  Vining,   408. 

v.   White,  311. 
Bakewell  v.  Garden,  252. 
Baldoek  T.  Johnson,  331. 
Baldwin  v.  Golde.  355. 

v.  Johnson,   137. 

v.  Sager,    161. 

v.  Van  Vorst,  99. 
Balen  v.  Insurance  Co.,  619. 
Bales  v.  Hunt,  621. 
Ball  v.  Mannin,  317. 

v.  Ray,   590. 
Ballard  v.  Carr,  327. 

v.  Tomlinson,  593. 
Ballinger  v.   Bourland,  466. 
Balls  T.  Strutt,  601. 
Baltimore  &  L.  T.   Co.  r.  Moale, 

487. 
Baltimore  &  O.  R.  Co.  T.  Arthur, 

643,  644. 

Bancroft  v.  Consen,  87. 
Banpor  Electric  Light  &  Power  Co. 

v.  Robinson,  506. 
Bangs  v.  Dunn,  360,  495. 


Banister,  In  re.  542, 
Baukhead  v.  Alloway,  521. 

v.  Owen,  489. 

Bank  of  Mobile  v.  Institution,  146. 
Bank  of  Montgomery  Co.'s  Appeal, 
.458. 
Bank  of  Montreal  v.  Railroad  Co., 

650. 
Bank  of  Muskingum  v.  Carpenter's 

Adm'rs,  477. 

Bank  of  Orleans  v.  Flagg,  137,  141. 
Bank  of  Scotland  v.  Christie,  523. 
Bank  of  U.  S.  v.  Davis,  134. 

T.  Housman,  405. 
Bank  of  Utica  v.  Mesereau,  28. 
Banks  v.  Long,  159. 
Barber  v.  Rukeyser,  254,  285. 
Baring  v.  Nash,  611. 
Barker  v.  Hill,  252. 
Barker's  Trusts,  In  re,  358,  443. 
Barkley  v.  Lane's  Ex'r,  366. 
Barlow  v.  Scott's  Adm'rs,  60. 
Barnard  v.  Duncan,  304. 

v.  Gantz,  324. 

v.  Lee,  550. 

T.  Stone,  324. 

v.  Wilson,  465. 
Barnes  v.  Gaslight  Co.,  134. 

v.  Jones,  648. 

v.  Railroad  Co.,  554,  555. 

v.  Taylor,  53,  55. 
Barney  v.  McCarty,  147. 
Barnhart  v.  Greenshields,  129,  140. 
Barnum  v.  Mayor,  etc.,  395. 
Barr  v.  Cubbage,  437. 

v.  Hatch,  "252. 
Barrell  v.  Joy,  362. 
Barret  v.  Beckford,  206. 
Barrett  v.  Hartley,  434. 

v.  Hinckley,  448,  449,  451. 

v.  Sear,  164. 
Barrow  y.  Barrow,  403. 

v.  Richard,  575. 
Barry  v.  Shelby,  33. 

T.  Wisdom,  109. 
Earth  v.  Deuel,  270. 
Barthet  v.  City  of  New  Orleans,  35, 
Bartlett  v.  Bartlett,  329. 

v.  Elaine,  299. 

v.  Crittenden,  597,  599. 
Bascom  v.  Albertson,  395. 
Basey  v.  Gallagher,  3,  21. 
Baskcomb  v.  Beckwith,  542. 
Bass  v.  Estill,  515. 
Basset  v.  Nosworthy.  62,  159. 
Bassett  v.  Brown,  284,  285. 

T.  Hughes,  462. 

v.  Leslie,  642. 

v.  Nosworthy,  115,  157,  437. 

v.  Schoemaker,  323. 
Bateman  v.  Willoe,  572. 
Bates  v.  Ball.  318. 

v.  Bank,  501. 

v.  Norcrofs.  148. 

v.  Slade.  587. 
Batteley  v.  Windle,  400. 
Bnttell  v.  Matot,  557. 
Battersea,  Park  Acts,  In  re,  235. 


(556 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Baugber's  Appeal,  518. 
Baughman  v.  Heed,  649. 
Bauingarten  v.  Broadaway,  676. 
Ban  m'b  Appeal.  528. 
Bausmaa   v.   Kelley,  56,  131,   158, 

029. 
Baxter  T.  Fanner,  636. 

v.  Moses,  338. 
Bay  v.  Williams,  462. 
Bayard  v.  Hoffman,  242. 
Bay  City  Bridge  Co.  v.  Van  Etten, 

33. 
Bayley  v.  Bishop,  244. 

v.  Greenleaf,  489. 
Baylor's  Lessee  T.  Dejarnett*,  612. 
Beach  v.  Shaw,  83. 
Beadles  v.  Miller,  131. 
Beal  v.  Chase,  575. 

v.  Harrington,  489. 
Beale  v.  Hayes,  109. 
Bean  v.  Railroad  Co.,  272. 
Beard  v.  Beard,  26(i. 

v.  Delaney,  108. 
Beardsley    v.    Duntley,    280,    290, 

Beatie  v.  Butler,  141. 
Beatty  v.  Byers,  246. 

v.  dark,  252,  435. 
Beauchainp  v.  Winn,  282. 
Beauclerk  v.  James.  188. 
Beaumont  v.  Boultbee,  56. 
Beaver  v.  Beaver,  372,  374,  611. 
Bebee  v.  Bank,  505. 
Beck  v.  Allison,  531. 

v.  Uhrich,  162. 
Becker  v.  Howard,  454. 
Beckford  v.  Beckford,  410. 
Beckham  v.  Drake,  109. 
Beckley  T.  Newland,  496. 
Beck's  Appeal,  370. 
Beekwith  v.  Rector,  etc.,  895. 

v.  Webber,  512. 
Bedford  v.  Hickman,  304. 
Bedilian  v.  Seaton,  57. 
Beebe  v.  Knapp,  293. 
Beekman  v.  Frost,  147. 
Beere  v.  Beere,  344. 
Beers  v.  Raynolds,  521. 
Behrens  v.  McKenzie,  355. 
Bein  v.  Heath,  3,  20. 
Belchier,  Ex  parte,  423. 
Belfast,  The,  v.  Boon,  290. 
Belknap  v.  Schild,  578. 

v.  Sea  ley,  257,  278. 
Bell  v.  Bell,  302. 

v.  Dewoody,  34. 

T.  Hudson,  54,  55. 

v.  Lawrence's  Adm'r,  265,  274. 

v.  Twilight,  142. 
Bellamy  v.  Sabine.  151. 
Belle  of  the  Sea,  The,  171. 
Belmont  v.  Ooman,  461. 
BemiR  v.  Call,  179. 

v.  Upham,  594. 
Bence  v.  Gilpin,  420. 
P.pmiing  v.  Bending,  193,  194. 
Bengoofh  v.  Walker.  219. 
Benjamin  v.  Gill,  430. 


Bennet  v.  Bennet,  409,  411. 
Bennett,  Bx  parte,  323. 

v.  Austin,  322,  430. 

v.  Bates,  461,  5O5. 

v.  Gibbons,  295,  296. 

T.  Harper,  100. 

T.  Judson,  299. 

T.  McMillin,  302. 

v.  Stevenson,  99. 
Benson  v.  Lamb,  551. 

v.  Markoe,  261,  620. 

v.  Whittam,  365. 
Bent  v.  Priest,  415. 
Bentley  v.  Craven,  429. 

v.  Whittemore,  200. 
Benyon  v.  Benyon,  210. 

v.  Fitch,  309. 
Bergen  v.  Udall,  331. 
Berkmeyer  v.  Killerman,  56. 
Berney  v.  Sewell,  650. 
Berrikott  v.  Traphagen,  105. 
Berry  v.  Insurance  Co.,  64. 

v.  Lovi,  308. 

v.  Whitney,  279. 

v.  Wisdom,  107. 
Besant  v.  Wood,  572. 
Best  v.  Stow,  278. 
Bethea  v.  Bethea,  66. 
Bethell  v.  Bethell,  92,  290,  294. 
Bethlehem  v.  Annis,  453. 
Bevan  v.  Cooper,  483. 
Beverley  v.  Brooke,  645,  646,  649. 
Bickel's  Appeal,  52. 
Bicknell  v.  Bicknell,  478. 
Bid  well  v.  Insurance  Co.,  41. 
Bier  v.  Smith,  34. 
Bierbower's  Appeal,  35. 
Bierce  v.  Hotel  Co.,  133. 
Bigelow  v.  Benedict,  310,  311. 

v.  Bridge  Co.,  004. 

v.  Foss,  179. 

v.  Wilson,  fi20. 

Bijrhmd  v.  Huddleston,  184,  198. 
Bilbie  v.  Lumley,  258,  266. 
Billings  v.  Smelting  Co.,164. 
Bingham  v.  Bingham,  269. 

v.  Brands.  313. 
Binks  v.  Rokeby,  559. 
Bird  v.  Davis,  522. 

v.  Den  ni  son,  144. 

v.  Decker,  467. 

v.  Lake,  108. 
Birdsall  v.  Oopsey,  161. 

v.  Russell,  126,  129. 
Birmingham  v.  Kirwan,  191. 

v.  Lesan,  110. 

Bisco  v.  Earl  of  Banbury,  14fit 
Bishop  v.  Bishop,  518. 

v.  Insurance  Co.,  623. 

v.  Redmond,  338, 

v.  Scheider,  147. 
Black  v.  Washington,  611. 
Blackburn  v.  Clarke,  68. 

T.  Gregson,  484. 
Blacket  v.  Lamb,  186. 
Blnckett  v.  Bates,  532,  538. 
Blackler  v.  Booth,  200. 
Blackshire  T.  Pettit,  117. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


557 


Blackstone  Bank  v.  Davis.  377. 

v.  Hill,  522. 
Blackwell  v.  Kyan,  541. 
Blackwilder  v.  .Loveless,  308. 
Blackwood  v.  Bank,  02. 
Blair  v.  Brabsoii,  34. 

v.  Bromley,  284. 

v.  Wait,  lt>8,  173. 

v.  Wilson,  192. 
Blaisdell  v.  Ahern,  327. 
Blakeman  v.  Blakeman,  262,  264. 
Blakemore    v.    Canal    Navigation, 

566. 

Blanc  v.  Murray,  29. 
Blanchard  v.  Ware,  153. 
Blandford  v.  Marlborough.  B7. 
Blandy  v.  Widmore,  86,  222, 
Blaney  v.  Bearce,  451. 
Blatchford  v.  Newberry,  192. 
Blatchley  T.  Osborn,  131. 
Blauvelt  v.  Van  Winkle,  481. 
Bleakley'a  Appeal,  71,  7t>. 
Bleverhasset  v.  Fuller,  618. 
Bliss  v.  Lawrence,  495. 

v.  Prichard,  55. 
Block  v.  Darling,  403. 
Blodgett  v.  Hildreth,  363,  408. 

v.  Hobart,   280. 

v.  Perry,    171. 
Blondheim  v.  Moore,  647. 
Blood  v.  Blood.  146. 
Bloodgood  v.  Clark,  652. 
Bloom  v.  Noggle,  478. 
'Blouin  v.  Phaneuf,  367. 
Blount  T.  Walker,  401. 
Blow  v.  Maynard,  510. 
Blue  v.  Marshall,  421. 

v.  Watson,  642. 
Blum  v.  Van  Vechten,  58* 
Blyth  v.  Fladgate,  440. 
Boardman  v.  Larrabee,  462. 
Board  of  Chosen  Freeholders  of  Es- 
sex Co.  v.  Bank,  35. 
Board    of    Com'rs    of    Montgomery 

Co.  v.  Elston,  68. 
Board  of  Education  of  School  Dist. 

No.  85  v.  Du  Parquet,  503. 
Board  of  Public  Works  v.  College, 

338. 
Board  of  Sup' re  of  Kane  Co.  T.  Her- 

rington,  179. 
Boaz  v.  Mfg.  Co.,  304. 
Bobb  v.  Woodward,  33. 
Bodine  v.  Killeen,  179. 
Bodley  v.  Taylor,  20. 
Bogan  v.  Daughdrill,  527. 
Bogert  v.  Hertell,  240. 
Boggs  v.  FTargrave,  261. 
Bogue  T.  Williams,  137. 
Bonart  v.  Chamberlain,  201, 
Bolin  T.  Connelly,  153. 
Bond  T.  Kent,  490. 

v.  Moore,  403. 
Bonesteel  v.  Bonesteel,  639. 
Bongard  v.  Block,  338. 
Bouner  v.  Bonner,  516. 
Bonney  v.  Seely,  509. 

v.  Stoughton,  54,  262,  264. 
EATON.EQ. — 12 


Booker  v.  Booker,  636. 
Boon  v.  Barnes,  159. 
Booue  v.  Bank,  384. 

v.  Chiles,  55,  156. 
Boone  Co.  v.  Railroad  Co.,  52. 
Booth  v.  Barnum,  129. 

v.  Booth,  431. 

v.  Clark,  645. 
Boqut  v.  Coburn,  470. 
Bor  v.  Bor.  198. 
Borden  v.  Curtis,  561. 
Borders  v.  Kattleman,  294. 

v.  Murphy,  430. 
Boren  v.  Smith,  45. 
Borland  v.  Thornton,  334. 
Born  v.  Schrenkeisen,  260,  262. 
Boston  Diatite  Co.  v.  Mfg.  Co.,  580. 
Boston  Ice  Co.  v.  Potter,  268. 
Boston  &  M.  R.  Co.  v.  Bartlett,  537, 

541. 
Bostwick  v.  Beach,  559-561. 

v.  McEvoy,  61. 
Botsford  v.  Burr,  406,  408. 
Boughton  v.  Boughton,  198. 
Boulden  v.  Lanahan,  151. 
Boulton  v.  Jones,  268. 
Bourget  v.  Monroe,  536. 
Bourke  v.  Callanan,  407. 
Bourne  v.  Bourne,  228. 
Boursot  v.  Savage,  132. 
Bouverie  v.  Preutice,  617. 
Bowditch  v.  Banuelos,  358. 
Bowen  v.  Lingle,  233. 

v.  Prout,  159. 

Bowery  Nat.  Bank  v.  Wilson,  360. 
Bowker  v.  Delong,  298. 

v.  Pierce,  423. 
Bowies'  Case,  584. 
Bowman  v.  Anderson,  141, 

T.  Bailey,  233. 

V.  Caritiiers,    290. 

T.  Faw,  489. 

v.  Patrick,   329. 
Bowser  v.  Colby,  83. 
Boyce's  Ex'rs  v.  Grundy,  42. 
Boyd,  Ex  parte,  633. 

T.  Beaudin,  473. 

T.  Carbon  Black  Co.,  35. 

T.  De  La  Montagnie,  331,  332. 

T.  Dowie,  4. 

T.  Hawkins,  434. 

v.  McLean,  4.08. 

T.  Shiffer,  295. 

v.  U.  S.,  634. 
Boyer  v.  Berryman,  355. 
Boyertown  Nat.  Bank  v.  Hartman, 

623. 

Boyes  v.  Liddell,  551. 
Boyle  v.  Boyle,  370. 

v.  Zacharie,  20. 
Boynton  v.  Hazelboorn,  297. 

v.  Hubbard,  3O9.  311. 
Boyse  v.   Rossborough.  317. 
Bozarth  v.  Largent,  470. 
Brace  v.  Duchess  of  Marlborough, 

64. 

Bracehridge  v.  Buckley,  112. 
Brackett  v.  Griswold,  493. 


658 


CASES  CITED. 
[The  flguret  refer  to  pages.] 


Bradford  v.  Marrin,  487. 
Bradford  E.  &  0.  K.  Co.  v.  Railroad 

Co.,  533. 

Bradish  v.  Gibbs,  252. 
Bradlaugh  v.  Newdegate,  495. 
Bradley  v.  Bryan,  12O. 
Bradshaw  y.  Huish,  208. 
Brady  v.  Dilley,  435. 

v.  Hill.  521. 

v.  Weeks,   588. 
Bragg  v.  Mussie's  Adm'r,  454. 

y.  Pauik,  303. 
Braithwaite  v.  Britain,  61. 
Bramwell  v.  Halcombe,  598, 
Brandreth  v.  Lance,  580. 
Brant  v.  Iron  Co.,  108. 
Brashear  v.  West,  422. 
Brauuschweiger  v.  Waits,  294. 
Brawdy  v.  Brawdy,  555. 
Braxton  v.  State,  61. 
Brazel  v.  Fair,  439. 
Breckinridge  v.  Taylor,  508. 
Breed  v.  Investment  Co.,  59. 
Brendel  v.  Klopp,  (512. 
Breneiser  v.  Davis,  623. 
Brevoort  v.  Brevoort,  612. 
Brewer  v.  Herbert,  79,  249. 
Brewster  v.  Edgerly,  105. 

v.  Striker,  307. 
Brice  v.  Brice,  143. 

v.  Stokes,  431-133,  441. 

v.  Watkins,  513. 
Brick  v.  Brick,  454. 
Bridenbecker  v.  Lowell,  87. 
Bridesburg    Mfg.    Co.,    Appeal    of, 

643. 

Bridges  v.  Hyatt,  105. 
Briggs  v.  Borden,  604. 

v.  Carroll,  483. 

v.  French,  89. 

v.  Johnson,  285,  627. 

Y.  Jones,  122. 

y.  Light  Boat  Cedar  Point,  356. 

v.  Vanderbilt,  257. 
Bright  v.  Boyd,  480. 
Bright's  Appeal,  In  re,  230. 
Brill  v.  Tuttle,  501. 

v.  Wright,  483. 
Brinkerhoff  v.  Brinkerhoff,  179. 

v.  Marvin,  51'."). 

Brinkman  v.  Jones.  124,  127,  128. 
Briscoe  v.  Bronaugh.  487. 
Brison  v.  Brison,  329. 
Bristol  T.  Bristol,  377,  390. 
Bristow  v.  Warde,  188. 
Britain  v.  Rossiter,  552,  553. 
Britton  v.  Supreme  Council,  45. 
Broad  bent  v.  Barrow,  393. 
Brondhead  v.  McKay,  473. 
Broadnax  T.  Baker,  112. 
Broudiip  v.  Woodman,  363. 
Broadway    Nat.    Bank    v.    Adams, 

o  1 7. 

Broadwell  v.  Brondwell,  280. 
Brock  v.  Dole,  r>X.{,  r>H4. 
Brocksopp  v.  Barnps,  434. 
Broderick's  Will,  In  re,  285,  417. 
Brodie  v.  Barry,  189. 


Brokaw  v.  Hudson,  209. 
Bromley  v.  Holland,  41. 

v.  Smith,  309. 
Brooke  v.  Berry,  331. 
Brooking  v.  Maudslay,  636. 
Brooklyn  &  N.  It.  Co.  v.  Bank,  160. 
Brooks  T.  Ackerly,  Oil. 
Brophy  v.  Lawler,  334. 
Broughton  v.  Hutt,  264. 
Brower  v.  Wituieyer,  487. 
Brown  v.  Armistead,  258, 

T.  Ass'n,   4t5U. 

v.  Bank,  4(i8. 

v.  Bowen,  173. 

T.  Bronson,  344, 

T.  Brown,    184,    194,    198,   305, 
528,  555. 

T.  Biirbank,  322. 

v.  Coal  Co.,  619. 

V.  Cody,  163. 

v.  Conuell,  131. 

v.  County  of  Buena  Vista,  55. 

v.  Cram,   451. 

v.  Deposit  Co.,  549. 

v.  Desmond,  92,  534. 

v.  Ferrell,  487. 

v.  Finney,  535. 

v.  French,  428. 

v.  Higgs,  252. 

v.  How,  3J54. 

v.  Joiies,  4110. 

T.  Judge,  24. 

T.  Kuapp,  482,  484. 

v.  Luiit,  140. 

v.  Muuger,  536. 

T.  Pane-oast,  387,  390. 

T.  Pierce,  319. 

v.  Railway  Co.,  33. 

T.  Safe-Deposit  Oo.,  550. 

T.  Stewart,  451. 

v.  Vandyke,  521. 

v.  Volkening,     127,     128,     138, 
140. 

v.  Ward,  184. 

T.  Wilson,  55. 
Browning  v.  Morris,  73. 
Brown's    Heirs    v.    Brown's   Devi- 
sees, 33. 

Brownson  v.  Reynolds,  572. 
Bruce  v.  Bruce,  L'r.~ 

v.  Osgood,  607. 
Bruck  v.  Tucker,  74. 
Bruen  v.  Bruen,  219. 

v.  Gillet,  432. 
Bruudagee  v.  Biggs,  155. 
Bnuier  v.  M«'ifrs,  34. 
Brunswick-Ba  Ike-Col  lender    Co.    T 

llcn-ick,  47>'2. 
Bryan  v.  Howlnnd,  367. 

T.  Kales,  55. 

v.  Winburn,  629. 
Bryant  T.  Erskiue.  453. 
Bryant's  Ex'r  v.  Boothe,  303,  304. 
Bryce   v.   Insurance  Co.,   263,   619, 

dao. 

Brydon  v.  Campbell,  147. 
Buchanan  T.  Howland,  598. 
Buchaonon  T.  Little,  553. 


CASES  CITED. 


659 


[Th«  figures  refer  to  pages.] 

Buck  v.  Coward,  312. 

v.  Milford,  172. 

v.  Smith,  532. 

Buckingham  v.  Morrison,  434. 
Buckley  v.  Daley,  451. 

v.  Patterson,  543. 
Buckmaster  v.  Harrop,  554. 
Budd  v.  Olver.  511. 
Budington  v.  Munson,  345. 
Buflington  v.  Gerrish,  160. 
Bufkin  v.  Boyce,  649. 
Bugbee's  Appeal,  120. 
Bull  v.  Church,  194. 
Bullard  v.  Chandler,  387. 
Bullis  v.  Noble,  170. 
Bullitt  v.  Farrar,  293. 
Bullock  v.  Dommitt,  249. 
Bumpus  v.  Platner,  163. 
Burbank  v.  Whitney,  357. 
Burch  v.  Carter,  149,  150. 
Burdell  v.  Comstock,  40. 
Burden  v.  Stein,  593. 
Burdett  v.  May,  306. 
Burditt  v.  Porter,  132. 
Burdon  Cent.  Sugar-Befining  Co.  T. 

Leverich,  573. 
Burgess  v.  Wheate,  78. 
Burke  v.  Seely,  74. 

v.  Taylor,  308. 
Burkhalter  v.  Jones,  543. 
Burkhardt  v.  Howard,  489. 
Burk's  Appeal,  561. 
Burleigh  v.  White,  408. 
Burleson  v.  McDermott,  152. 
Burling  v.  King,  85. 
Burlingame  v.  Rowland,  556. 
Burn  v.  Oarvalho,  500,  503. 
Burnand  v.  Rodocanachi,  512. 
Buruell  v.  Martin,  466. 
Burnet  v.  Boyd,  477. 
Burnett  v.  Anderson,  644. 

v.  Gustafson,  416. 
Burney  v.  Ryle,  576. 
Burnham  v.  Earth,  58. 

v.  Comfort,  213,  214. 

v.  Kid  well,  317,  355. 
Burns  v.  Caskey,  620. 

v.  Dockray,  295. 
Burnside  v.  Wayman,  371. 
Burr  v.  Sim,  242. 

v.  tfodd,  106. 

Burrage  v.  Mining  Co.,  24. 
Burrall  v.  Jewett,  596. 
Burrell  v.  Root,  92,  534. 
Burritt  v.  Silliman,  419. 
Burrow  v.  Scammell,  560. 
Burrowes  v.  Lock,  294. 
Burt  v.  Oassety,  143. 

T.  Quisenberry,  317,  320. 
Burtis  v.  Bradford,  472. 
Burton  v.  Mill,  338. 
Burwell  v.  Jackson,  545. 
Buse  v.  Page,  456. 
Bush  v.  Golden,  145. 

\.  Lathrop,  506. 

v.  Marriman,  621. 
Bushnell  T.  Robeson,  590. 


Butcher  v.  Kemp,  191,  194. 

v.  Yocuui,  Itfl. 
Butchers'    Slaughtering   &   Melting 

Ass'n  v.  City  of  Boston,  175. 
Bute  v.  Glamorganshire  Canal  Co.. 

617. 
Butler  v.  Butler,  344,  427,  431. 

v.  Duncan,  309. 

v.  Freeman,  648. 

v.  Haskell,  307. 

v.  Stevens,  129. 

Butler  Paper  Co.  v.  Robbing,  5& 
Butman  v.  Porter,  536. 
Butterfield  v.  Cowing,  441. 
Buttrick  v.  Wentworth,  466. 
Buttricke  v.  Brodhurst,  196. 
Buzard  v.  Houston,  284. 
Byam  v.  Bullard,  595. 
Byars  v.  Stubbs,  542. 
Byrne  v.  Byrne,  2O6. 

v.  Stewart,  291,  292. 
Byxbie  v.  Wood,  494. 


Oabeen  v.  Breckenridge,  137,  140, 

143. 

Cable  v.  Alvord,  638. 
Cable's  Appeal,  In  re,  482. 
Cabot  v.  Christie,  295. 
Cadigan  v.  Brown,  35,  37. 
Cad  man  v.  Peter,  455. 
Cadogan  v.  Kennett.  337. 
Cadwell  v.  Brown,  421. 
Caffrey  v.  Darby,  421. 
Oaguey  v.  O'Brien,  418. 
Oaird  v.  Sime,  599. 
Cairns  v.  O'Bleness,  60. 
Cairo  &  F.  R.  Co.  v.  Titus,  264, 

2S5. 

Cake  v.  Shull,  454. 
Calcraft  v.  Roebuck,  559. 
Calder  v.  Chapman,  146,  147. 

v.  Moran,  365. 
Oaldwell  v.  Carrington,  437. 

v.  Depew,  279.  543. 

v.  Dickinson,  533. 

v.  Vanvlissengen,  596. 
Calhoun  v.  Burnett,  440. 

v.  King,  649. 

v.  Millard,  53-55,  30«. 
Callahan  v.  Boazman,  523. 
Callanan  v.  Edwards,  505. 

v.  Gilman,  588. 
Calvo  v.  Davies,  462. 
Cnmbrelleng  v.  Purton.  545. 
Camp  v.  Bostwick,  507,  508. 

T.  Crocker,  395. 
Cam  pa  u  v.  Van  Dyke,  305. 
Campbell  v.  Adsit.  33. 

v.  Bracken  ridge,  140,  157. 

v.  Campbell,  318. 

v.  Day.  504. 

v.  Dearborn,  4<54,  455. 

v.  Durham.  279,  543. 

v.  Freeman.  81. 

T.  Mesier,  507. 


660 


CASES  CITED. 
[The  flgurei  refer  to  pages.] 


Campbell  v.  Nichols,  177. 

v.  Rust,  531. 

T.  Seaman,  590. 

T.  Walker,  323. 

T.  Whittiugham,  33. 
Campbell's  Appeal,  332. 
Can  v.  Brennan,  138. 
Oanfield  v.  Bostwick,  483. 
Cannon  v.  Lindsey,  268. 
Capper,  Ex  parte,  109. 
Carhart  v.  Harshaw,  343. 
Carley  v.  Lewis,  204. 
Carlisle  v.  Cooper,  37,  589. 

v.  Jumper,  62,   157. 
Carll  v.  Emery.  75. 
Carlton  v.  Buckner,  480. 
Carne  v.  Long,  388. 
Carney  v.  Hadley,  588. 
Carpenter,  In  re,  3&L 

v.  Bowen,  451. 

T.  Canal  Co.,  55. 

T.  Carpenter,  422,  423,  452. 

T.  Lockhart,  109. 

v.  Longnn,  459. 

T.  Osborne,  41. 

v.  Strange,  93. 
Carr  v.  Branch,  229. 

T.  Callaghan,  155. 

v.  Carr,  454,  4.56. 

T.  Coal  Co.,  155. 

v.  Ellison,  246. 

v.  Railway  Co.,  174. 

v.  Wallace,   121. 
Carraway  v.  Carraway,  119. 
Carrier  v.  Heather,  323. 
Carrigan  v.  Evans,  612. 
Carrodus  v.  Sharp,  559. 
Carroll  v.  Ballance,  451. 

T.  Johnston,  62. 

v.  Renich,  380. 

Carron  Iron  Co.  v.  Maclaren,  91. 
Carruthere,  Ex  parte,  501. 
Carskaddon  v.  City  of  South  Bend, 

620. 

Carson  T.  Ury,  600. 
Carte  v.  Duff,  597. 
Carter  v.  Burr,  323. 

T.  Champion.  146. 

T.  Gunn,  450. 

T.  Phillips,  551. 

v.  Strom,  109. 

v.  Tioe,  328. 
Cartwright  T.  Gardner,  551. 

v.  Gieen,  634. 

v.  Pettus,  93. 

Caruthers  v.  Humphrey,  450. 
Carrer  T.  Coffman,  480. 

T.  Lassallette,  621. 

r.  Peck,  92. 
Cary  v.  Cary,  323. 

v.  White,   159. 
Casborne  v.  Scarfe.  448. 
Case  v.  Fishback.  249. 

v.  Phelps,  339. 
Casey  T.  Oavaroc.  81. 

T.  Union.  581. 
Qa*hman  y.  Harrison,  501. 
Casler  T.  Sbipman,  60. 


Cassady  v.  Gavenor,  69. 

Cassel  v.  Scott,  572. 

Castner  v.  Walrod,  54, 

Cate  v.  Cate,  487. 

Cathcart  T.  Robinson,  40. 

Catlin  v.  Green,  54. 

Caton  T.  Caton.  554. 

Cator  v.  Earl  of  Pembroke,  489. 

Cauffman  v.  Cauffman,  184. 

C.  Aultman  &  Co.  T.  Booth,  342. 

Oavalli  v.  Allen,  137. 

Cavanaugh  v.  Peterson,  120. 

Cave  v.  Cave,  135. 

Cavender  v.  Cavender,  443. 

Cavin  v.  Gleason,  438. 

Center  v.  Bank,  153. 

Central  Nat.  Bank  v.  Insurance  Co.. 

87,  438. 
Central   R.   R.    &   Banking  Co.  of 

Georgia  v.  Pettus,  59. 
Central  Trust  Co.  v.  Railway  Co., 

651. 

Cesar  v.  Karutz,  303. 
Chace  v.  Chapin.  365. 
Chafee  v.  Quidnick  Co.,  646. 
Chalmer  T.  Bradley,  442. 
Chalmers  v.  Stovill,  194. 
Chamberlain  v.  Bagley,  106. 

v.  Thompson,  451. 
Chamberlaine  v.  Chamberlaine,  252. 
Chamberlayne  v.  Brockett,  389. 
Chambers  v.  Jones,  69. 

v.  Livermore,  279. 
Champion  v.  Brown.  487. 
Champlin  v.  Champlin,  344. 
Chancey's  Case,  201,  206. 
Chandler  v.  Pocork,  232. 
Chapel  v.  Hull.  582. 
Chapin  v.  Billings,  99. 

v.  Hill.   193. 

v.  Wright,   470. 
Chapman  v.  Chapman,  171. 

v.  Cole,  270. 

v.  Field.  278. 

V.  Gibson.  281. 

T.  Lee.  633. 

v.  Pinzroe.  121. 

T.  Sims,  162. 

T.  Tanner.  486. 

v.  West,  153. 
Chappell  v.  Gregory,  548. 
Charless  v.  Rankin,  592. 
Charleston    &    W.    C.    R.    Co.    T. 

Hughes,  00. 
Charlton  v.  \Vost.  206. 
Charpiot  v.  Sigerson,  555. 
Charter  v.  Trevelynn.  56. 
Chase  v.  Boushton,  39. 

T.  Box.  524. 

T.  Peck.  477.  487. 

T.  P.o^kett.  363.  364, 

T.  Woodbury.  471. 
Chase's  Case.  640. 
Chatfield  v.  Simonson,  171. 
Chatham   Furnace   Co.   v.    Moffatt, 

291. 

Chnntauque    Co.    Bank    T.    White, 
(Ho. 


CASES  CITED. 
[The  figure*  refer  to  pages.] 


GUI 


Chave  v.  Farrant,  208. 

Cheddick's  Ex'r  v.  Marsh,  102,  104. 

Cheesman  v.  Shreve,  585. 
v.  Thome,  612. 

Cheever  v.  Fair,  471. 

Cheney  v.  LIbb'y,  549,  550. 
v.  Patton,  465. 

Chesman  v.  Cuinmings,  546. 

Chester  v.  Jumel,  476. 

Chestnut     Hill     Reservoir     Co.     T. 
Chase,  264. 

Chetwyn  v.  Fleetwood,  198. 

Chetwynd  v.  Morgan,  81,  225. 

Chew  T.  Hyman,  470. 

Chicago,   B.   &  Q.  R.  Co.  T.  Cole, 

603. 
v.  Reno,  539. 

Chicago,    M.    &   St.   P.   R.   Co.    r. 
Stewart,  541. 

Chicago  Municipal  Gaslight  &  Fuel 
Co.  v.  Town  of  Lake,  549. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Ken- 
nedy, 128. 

Chicago,  St.  L.  &  N.  O.  R.  Co.  y. 
Car  Co..  512. 

Chicago  &  A.  Oil  &  Mining  Co.  T. 
Petroleum  Co.,  646. 

Chicago  &  G.  W.  R.  Land  Co.  T. 
Peck,  490. 

Chicago  &  N.  W.  Ry.  Co.  T.  Nich- 
ols, 496. 

Chicherter  v.  Bickerstaff,  246. 

Chichester  v.  Coventry,  201. 

Chick  v.  Willetts,  450. 

Chidgey  v.  Harris,  419. 

Chinnock  v.  Sainsbury.  531. 

Chipman  v.  Morrill,  507. 

Chisholm  v.  Adams,  29. 

Chiswell  v.   Morris.   616. 

Ohitty  v.  Parker,  229. 

Oholmondeley  v.  Clinton,  449. 

Choteau  v.  Jones,  75. 

Chouteau  v.  Bonghton,  494. 

Christmas  v.  Russell,  501. 

Christopher    v.     Christopher,     160, 
489 

Christopher  &  T.  St.  R.  Co.  T.  Rail- 
way Co.,  023. 

Christ's-Hospital  v.  Budgin,  400. 

Christy  v.  McKee,  487,  490. 

Christy's  Appeal,  518. 

Chrysler  v.  Canaday,  292. 

Church  v.  Bull,  191,  192,  194. 
v.  Church,  233. 
v.  Kemble.  188. 
T.  Rutland,  163. 
v.  School    Dist,   586. 
v.  Winton,  52. 

Chnrcher  v.  Guernsey,  129. 

Churchill   T.   Holt,  509. 
v.  Morse,  119. 

Churchman  v.  Ireland.  188. 

Churton  v.  Douglas.  576. 

Chute  v.  Quincy,  620. 

Cigar  Makers'  Protective  Union  T. 
Conhaim,  600. 

City  Bnnk,  Ex  narte,  508. 
T.  Bangs,  642. 


City  Council  of  Charleston  r.  Page, 

129. 

City  Fire  Ins.  Co.  v.  Olmsted,  533. 
City  of  Bloomington  v.  Smith,  251. 
City  of  Chicago  v.  Transit  (Jo.,  71. 

v.  Witt,  129. 
City  of  Grand  Rapids  v.  Weiden. 

590. 

City  of  Hartford  v.  Chipman,  36. 
City  of  London  v.  Garway,  403. 
City  of  Philadelphia  v.  Davis,  187. 
City  of  Quincy  v.  Jones,  592. 
City  of  St.  Louis  v.  Priest,  424. 
City  of  Valparaiso  v.  Gardner,  605. 
Clabaugh  v.  Byerly,  80,  122,  151. 
Clailin  v.  Lenheim,  126. 
Clapnam  v.  Shillito,  297. 
Claridge  v.  Hoare,  634. 
Clark  v.  Barnard,  112. 

v.  Clark,  425,  468,  639. 

T.  Higgins,  620. 

T.  Holland,  128,  421. 

v.  Jetton,  214,  216,  219. 

T.  Lyons,  111. 

v.  McXeal,  163. 

v.  White,  299. 
Clarke  v.  Bogardus,  208,  209. 

v.  Clayton,  610. 

v.  Franklin,  240,  242. 

v.  Parker,  312. 
Clark's  Appeal,  582. 
Clarkson     v.     Morgan's    Devisees, 
153. 

T.  Skidmore,  465. 
Clason  v.  Bailey,  537. 
Olaussen  v.  La  Frenz,  24. 
day  v.  Wood,  369. 
Clayton  v.  Freet,  260. 
Clayton's  Case,   522,  523. 
Cleaveland  v.  Richardson,  300. 
Cleghorn  v.  Zumwalt,  270. 
Clemens  v.  Belford,  Clark  &  Oo.f 
597. 

v.  Caldwell,  443. 

Clement  v.  Cash,  102,  105,  107-109. 
Clements  v.  Moore,  337. 

v.  Railroad  Co.,  105. 

v.  Tillman,  88. 
Cleveland  v.  Southard,  461. 
Cleveland  Woolen  Mills  v.   Sibert. 

124. 

Clifford  v.  Earl  of  Burlington,  252. 
Clift  v.  Moses,  228. 
Cliruer  v.  Hovey,  624. 
Clinan  v.  Cooke,  556.  561. 
Clinch  v.  Financial  Corp.,  635. 
Clodfelter  v.  Cox,  504. 
Clopton  v.  Martin,  280. 
Close  v.  Flesher,  576. 

v.  Stuyvesant,  560. 
Cloud  v.  Clinkinbeard's  Ek'rs,  202, 
206. 

v.  Greasley,  361,  557. 
Clough  v.  Bond,  253. 
Cloutman  v.  Bailey,  297. 
Clowes  v.  Dickinson,  472. 
Coates  v.  Bank,  502.  503. 
Cobbett  T.  Brock,  332. 


6(32 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Gocnnougher  v.  Green,  541, 
Cochrane  v.  Willis,  270. 
Cock  v.  Ha  vie,  639. 

v.  Vau   Etten,  305. 
Oockey  v.  Millie's  Lessee,  146. 
Cocking  v.  Pratt,  275. 
CockrilT  v.  Armstrong,  365. 
Ooddington  v.  Bay,  1GO. 
Codman  v.  Rogers,  55. 

v.  Tinkhani.  (511,  613. 
Oodrington  v.  Codrington,  184, 

v.  Lindsay,   1»4. 
Coe  T.  Maiuseau,  139. 
Coffin  T.  Parker,  470. 
Cogan  v.  Stephens,  240,  241. 
Ooggeshall  v.  Pelton,  388. 
Cogswell  v.  Railroad  Go.,  590. 
Cohen  v.  Barton,  147. 

v.  Goldsboro  Cora'rs,  29. 

v.  Morris.  601,  650. 
Coker  v.  \Vhitlock,  467. 
Colbert  v.  Daniel,  173. 
Cole  v.  Cunningham,  91,  361. 

T.  Get/inger,  133. 

T.  Gibson,  311. 

V.  Milmine,  310. 

T.  Reynolds,  24. 

v.  Willard,  208. 
Ooleman  v.  Backlew,  140. 

v.  Reynolds,  148. 

v.  Slade,  522. 
Coles  v.  Bowne,  279,  280. 

v.  PilkiiiKton,  50. 

v.  Trecothick,  324. 
Colgate  v.  Compapuie  Francaise  de 
Telegraphe  de  Parisa,  N.  Y.,  631. 
Colgate's  Ex'r  v.  Colgate.  192. 
Colgrove  v.  Solomon,  556. 
Collier  v.  Brown.  307. 

v.  Collier's  Ex'rs,  232. 

v.  Munn,  430. 

T.  Slaughter's  Adm'r,  312. 
Collins  v.  Champ's  Heirs,  233,  236. 

v.  Collins,  <K',S. 

v.  Richart.  490. 
Colton  v.  Colton,  369. 

v.  Ross,  417. 

v.  Stanford,  298,  299,  325. 
Oolverson  v.  Bloomfield,  639. 
Oolvin,  In  re.  648.  649. 
Colwell  v.  Lawrence,  102,  106,  107. 
Combes  v.  Chandler,  174. 
Combs  T.  Scott,  40,  530,  541,  544, 

561. 

Oomegys  T.  Vasse,  494. 
Commonwealth  v.  Levy,  395. 
Compton  v.  Bank,  286. 
Oomstock  v.  Johnson,  66. 
Conant  T.  Bank.  290. 

v.  Jackson.  330. 
Conaway  v.  Sweeney,  527,  540. 
Cone  T.  Dunham,  398. 
Oonsrer  v.   Railroad  Co.,  529,  530, 

589. 
Conkey  T.  Bond,  825. 

v.  Hawthorne,  175. 
Ooiilan  v.  Roemer,  290. 
ConJin  T.  Macecar,  618k 


Connecticut  Fire  Ins.  Co.  T.  Rail- 
road Co.,  512. 

Connecticut  Mut.   L,ite  Ins.  Co.   v. 
Schaefer,  634. 

v.  Smith,  128,   159,  629. 
Connecticut    River    Sav.    Bank    v. 

Albee's  Estate,  374. 
Connelly  v.  Braustler,  179. 
Conner  v.  Welch,  273. 
Connolly  v.  Belt,  424. 
Conrad  v.  Insurance  Co.,  159,  160. 

v.  Williams,  311. 
Constant  v.  University,  133. 
Constantino  v.  Twelves,  340. 
Continental   Ins.   Co.    v.   Ruckman, 

619. 

Continental    Nat.    Bank    T.    Bank, 
168,  175. 

v.  Weems,  438. 
Continental     Store-Service    Oo.     T. 

Clark,  596. 

Converse  v.  Blumrich,  487. 
Oonville  v.  Shook,  521. 
Cook  v.  Anderson,  588. 

v.  Banker,  489. 

T.  Barr,  362. 

v.  Basley,  466. 

T.  Black,  503. 

v.  Gilmore,  434. 

T.  Hiitchinson.  401. 

T.  Johnson,  576. 

v.  Travis.  139,  150. 

v.  Woolen  Mill  Co.,  328. 
Oooke  v.  Clayworth.  318,  538. 

v.  Cooke,  338.  533. 

v.  Dealey,  236. 

v.  Husbands,  261. 
Cookes  v.  Hellier,  184. 
Cook's  Ex'rs  v.  Cook's  Adm'r,  229. 
Cooley  v.  Scarlett,  !>± 
Coombe  v.  Carter,  498. 
Cooper  v.  Cooper,  213,  215,  218. 

v.  Crabtree,  589. 

V.  Insurance  Co.,  275. 

T.  Lovciiiifr.  290,  292. 

v.  Phibbs.  2.1X.  2T>9,  264. 

T.  Power  Co.,  613. 

T.  SchU'siniror,  293. 

v.  Smith,  5<li>. 

v.   Vi-scy.  t>'J5. 

T.  Whittingham,  579. 
Cooth  v.  Jackson,  557. 
Cope  v.  Ass'n,  29. 
OopeUnd  v.  Insurance  Co.,  326. 
Copley  v.  Copley,  219. 
Oopp  v.  Hersey,  l'.»3. 
Coppinger  v.  Gubbins,  5S3. 
Ooquillard  v.  Suydam,  33. 
Coquillard's   Adm'r   v.   Bears,  495. 
Oorbett  v.  Laurens,  480,  481. 
Corby  v.  Bonn.  67. 
Core  v.  Bell,  584. 

Corliss  v.  B.  W.  Walker  Co.,  581. 
Cormicks,  In  re.  648. 
Cornelius  v.  Post.  583. 
Cornell.  In  re.  422. 

v.  ii;iii.  4r,<;. 
T.  Hichius,  506. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


663 


Corning  T.  Nail  Factory,  24,  37. 
Oornish  v.  Abington,  166,  174. 
Cornog  v.  Cornog,  233,  451. 
Cornwall  &  L.  R.  Oo.'s  Appeal,  532. 
Oorry  y.  Lamb,  193. 
Oorsellis,  In  re,  435. 
Gort  v.  Lassard,  576,  577. 
Oorwine  v.  Oorwine's  Ex'rs,  483. 
Cory  v.  Cory,  318. 

v.  Eyre,  65,  116. 
Oory's  Ex'r  v.  Oory,  199. 
Cothay  v.  Sydenham,  150,  503. 
Cotheal  v.  Talmage,  105,  106,  109. 
Cottington  v.  Fletcher,  375. 
Oottman  v.  Grace,  396. 
Cottrell's  Appeal,  511. 
Couillard  v.  Eaton,  518. 
Countess  of  Mornington  v.  Keane, 

476. 

Ooutts  v.  Acworth,  185,  330. 
Couturier  v.  Hastie,  269. 
Covenant  Mut.  Ben.  Ass'n  v.  Sears, 

533. 

Coventry  v.  Chichester,  212. 
Coverdale  v.   Eastwood,  50. 
Cowan's  Appeal,  328. 
Cowee  v.  Cornell,  315,  318,  324. 
Oowell  v.  Edwards,  508. 
Cowles  v.  Oowles,  213. 

v.  Whitman,  528. 
Oowley  v.  City  of  Spokane,  170. 
Cowman  v.  Oolquhoun,  33. 
Cowper  v.  Cowper,  50. 

v.  Scott,  184. 

v.  Stoneham,  440. 
Cowtan  v.  Williams,  645. 
Cox  v.  Boyleston,  32. 

v.  Rogers,  192,  197. 
Orabb  v.  Young,  423. 
Craig  v.   Hukill,   110. 

v.  Kittredge,  280. 

v.  Leiper,  57. 

v.  Leslie,  78,  82,  233,  240,  242. 

v.  Zimmerman,  163. 
Crain  v.  Barnes,  82. 
Cram  v.  Mitchell,  163. 
Cramer  T.  Watson,  470. 
Orampton  v.  Varna  R.  Co.,  533. 
Crane  >.  Bolles,  228. 

v.  Conklin,  318. 

Y.  Decamp,  74. 

V.  Hearn,  431. 

y.  McDonald,  642,  643. 

v.  Powell.  557. 

Oranford  v.  Tyrrell,  588,  590,  591. 
Cranmer's  Case,  206. 
Orary  v.  Goodman,  24. 
Grass  v.  Railroad  Co.,  644. 
Crassen  v.  Swoveland.  127,  142. 
Cravens  v.  Moore,  68. 
Crawford,  In  re,  216. 

v.  'Berth  olf,  79. 

V.  Edwards.  462. 

v.  Fisher,  fi4O. 

T.  Logan,  512. 

v.  Railroad  Co.,  141. 

T.  Scovell.  3."5. 

v.  Toogood,  551. 


Crawford's  Appeal,  374. 
Crawshay  v.  Thornton,  643-645. 
Cray  thorn*  T.  Swinburne,  59,  509, 

510. 

Greath  v.  Sims,  71. 
Credit  Co.  of  London  y.  Railroad 

Co.,  651. 

Creely  v.  Brick  Co.,  28. 
Crehore  y.  Crehore,  297. 
Crerar  v.  Williams,  388. 
Oresson's  Appeal,  388. 
Crighton  v.  Dahmer,  29. 
Orisfield  v.  State,  512. 
Crislip  v.  Cain,  33. 
Crocker  v.  Lowenthal,  420. 

v.  Manley,  298. 
Oroft  v.  Williams,  432,  433. 
Orompton  v.  Pratt,  523. 
Cromwell  v.  Insurance  Co.,  79. 
Crook    v.    Corporation   of   Seaford, 

555. 

Orooke  v.  Andrews,  627. 
Crooks  v.  Mppolt,  333. 
Cropley  v.  Cooper,  229. 
Crosby  v.  Merriam,  426. 
Cross  v.  De  Valle,  359. 

v.  Petree,  421. 

v.  Sprigg,  85. 
Crosslaud  v.  Powers,  489. 
Grouse  v.  Frothingham,  544. 
Crowe  v.  Ballard.  56,  57. 

v.  Oolbeth,  .489. 
Orowell  v.  Hospital,  463. 
Oowley  v.  Hicks,  234. 
Cruger  v.  Halliday,  420. 
Crump  v.  Black,  (52. 
Cruse  v.  Axtel.  395. 

v.  Bailey,  241. 

v.  Barley,  229. 
Oruttwell  v.  Lye,  531,  570. 
Cryder's  Appeal,  510. 
Ouddee  v.  Rntter,  527,  528. 
Oullen  v.  Carey,  454. 

v.  Dawson,  644. 
Oullingworth  v.  Loyd,  336w 
Culross  v.  Gibbons,  377. 
Cumming's  Appeal,  308. 
Cummings  v.  Bank,  602. 

v.  City  of  St.  Louis,  588. 

v.  Mayor,  etc.,  28. 
Cunningham  v.  Duncan,  561. 

v.  Pattee,  140,  141. 
Curdy  v.  Berton,  417,  418. 
Curling    v.     Marquis     Townshend, 
309.  652. 

y.  May.  228. 

Ourran  v.  Power  Co.,  538. 
Currant  v.  Jago.  410. 
Currie  v.  Misa,  16O. 
Curry  v.  Keyser.  291. 

v.  Larer.  107,  108. 

v.  Pile,  209. 
Curtis  v.  Lakin.  55. 

v.  Leavitt.  652. 

v.  Lyman,  147. 

v.  M'nndy.  130. 

v.  Root.  120. 
Curwyn  v.  Milner.  309. 


664 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Ouahing  v.  Blake,  380. 

v.  Drew,  1O4,  108. 
Cushman  v.  Bonfieia,  323. 

v.  Stone,  424. 
Ouyler  v.  Bogert.  633, 


Dabney  v.  Bailey,  197. 
Dade's  Adm'r  v.  Madison,  310. 
Dady  v.  Oondit,  295,  296. 
Dagenham  Dock  Oo.,  In  re,  97. 
Daggett  v.  Ayer,  271. 

v.  Kan  kin,  78. 
Dailey  v.  Oity  of  New  Haven,  357. 

v.  King,  265. 
Daily  v.  Litchfield,  109. 
Dakfn  v.  Williams,  104,  108. 
Dalbiac  v.  Dalbiac,  302. 
Dale  v.  Kimpton,  504. 

y.  Roosevelt,  91. 
Dalton  v.  Angus,  592. 

v.  Hamilton.  33. 
Daly  v.  Staiith,  577. 

v.  Wise,  303. 
Dambmann  v.  Schulting,  271,  274, 

290,  300. 

Damm  v.  Damm,  471. 
Damon  v.  Bryant.  338. 
Dana  v.  Bank,  355. 

v.  Investment  Co.,  551. 

v.  Trust  Co.,  325. 
Danaher  v.  Prentiss,  572. 
Dance  v.  Dance.  490. 
Danforth  v.  Briggs,  410. 

v.  Roberts,    32. 
Daniel  v.  Green,  33. 

v.  Leitch,  616. 

v.  Mitchell.  268. 
Daniels  v.  Davison.  14<X 

v.  Eisenlord,    453. 
Danser  v.  Warwick.  365. 
Darby  v.  Darby.  2'J6. 

v.  Wright.   604. 
Darke  v.  Mnrtyn,  427. 
Darling  v.  Mayor,  etc.,  253,  572. 

v.  Osborne,   277. 
Darrah  T.  Boyce,  35. 
D' Arras  y.  Keyser,  231. 
Darrow  T.  Calkins,  226. 
Darst  v.  Phillips,  42. 
Dascomb  v.  Marston,  387,  395. 
Daugherty  v.  Daugherty,  192. 
Davenport  v.  Dnvonport,  582. 

v.  Farrnr,  233. 

Davenport  Plow  Co.  v.  Lamp,  439. 
David  v.  Park,  173. 
Davidson  v.  Coon,  482,  606L 
Daviea  v.  Austen,  505. 

T.  Cooper,  301. 

T.  Davies,   312. 

T.  Penton,  109. 
D*v1s  v.  Bechstein,  508L 

T.  Browne,  601. 

T.  Burnett,  603. 

T.  Dock  Co.,  308. 


Davis  v.  Duke  of  Maryborough,  495, 
640. 

v.  Dunne,  328. 

T.  Gray,  640. 

v.   Handy,  173. 

T.  Hawkins,  297. 

v.  Hubbard,  473. 

v.  Leo,  583. 

T.  Morriss'  Ex'rs,  91. 

v.  I'arkiT,  534,  501. 

v.  Pnifiipa,  317. 

v.  Railway  Co.,  603, 

v.  Sawyer,  590. 

v.  Sloan,  628. 

T.  Society,  29. 

T.  Stambaugh.  363,  364. 

T.  Symonds,   279,  538. 

v.  Turvey,  611. 

T.  West.  96. 

v.  Whittaker,  216. 

T.  Wright,  430. 
Davis'  Appeal,  240,  483. 
Davoue  v.  Fanning,  325. 
Davys  v.  Boucher,  214. 
Dawson  v.  Bunk.  616. 

v.  Clarke,  400. 

v.  Dawson,  520,  639. 

v.  Graham,  291. 
Day  v.  Brownrigg,  46. 

v.  Cooley,  339. 

v.  Hunt,  529,  550. 

v.  Lubke,  551. 

v.  Roth.  87,  364. 
Dayton  v.  Fargo,  493. 
Deacon  v.  Smith,  87. 
Dean  v.  Anderson,  161. 

v.  Charleton,  68. 

v.  Emerson.  313. 

v.   Hart,  192. 

v.  O'Meara,  615. 

v.  Walker,  402. 
Deans  v.  Robertson,  68. 
Dearie  v.  Hall,  504. 
Dearmond  v.  Dearmond,  344. 
Deason  v.  Taylor,  149,  15O. 
Debell  v.  Foxworthy's  Heirs,  153. 
Debeze  v.  Mann,  21  it. 
De  Bruhl  v.  Maas.  489. 
De  Camp  v.  Carnnhan,  629. 

v.  Dobbins,  387. 
Decker  v.  Gardner,  651. 
De  Cordova  v.  De  Cordova,  265. 
Dcen  v.  Milne,  541. 
Deere  v.  Guest,  566. 
Deeth  v.  Hale,  24.">. 
De  Francesco  v.  Barnum,  531. 
De  Garante  v.  Gott,  233. 
De  Haven  v.  Williams,  431. 
Dehon  v.  Foster,  91. 
Deickman  v.  Arndt,  205. 
De  Klyn  v.  Watkins,  91. 
De  Lancey  v.  Stearns,  158,  162. 
Delaney's  Estate,  In  re,  184. 
Delaplaine  v.  Hitchcock,  lt>7. 
Delaware  Co.'s  Appeal,  604. 
I>c>];iw:in'.  L.  &  W.  R.  Oo.  T.  Iron 
Co.,  510. 


CASES  CITED. 
[Tha  flgurei  refer  to  pages.] 


665 


Deinnrest  T.  Hardham,  590. 

v.  Wynkoop,  157,  470. 
De  Mill  T.  Moffatt,  167. 
Deming  y.  Storage  Co.,  512. 
Denike  T.  Harris,  426. 
Denis  v.  Leclerc,  598. 
Dennis  v.  Burritt,  148. 

v.  Dennis.  280. 
Dennison  v.  Goehring,  252. 
Denny  v.  Brunson,  583. 

v.  Faulkner,  473. 

v.  Hancock,  290,  300,  543. 
Dent  v.  Bennett,  332. 

v.  Dent,  481. 

v.  Ferguson,  75. 
Den  ton,  In  re,  307. 

v.  Denton,  92,  639. 
De  Peyster  v.  Gould,  408. 

v.  Hasbrouck,  280. 
De  Pothonies  v.  De  Mattos,  492. 
Dering  v.  Earl  of  Winchelsea,  71, 

507,    512. 

Derrick  v.  Insurance  Co.,  280. 
Derry  v.  Peek,  288,  289. 
Desot  v.  Ross,  513. 
Desmond  v.  Myers,  342. 
Detra  v.  Kestner,  117. 
De  Vaughn  v.  McLeroy,  244. 
De  Vaynes  v.  Noble,  61. 

y.  Robinson,  440. 
Devine  v.  Harkness,  513. 
De  Visme,  In  re,  411. 

v.  De  Visme,  559. 
Devron  v.  First  Municipality,  20. 
Dewar  v.  Maitland,  189,  19i). 
Dewey  v.  Field,  170. 
De  Witt  v.  Hays,  24. 

T.  Moulton,  146. 

v.  Yates,  209,  210. 
Dexter  T.  Beard,  574. 
Dey  v.  Dunham,  146. 

v.  Williams,  206. 
De  Zouche  v.  Garrison,  645. 
Diamond  Match  Co.  v.  Roeber,  312, 

Dibre'll  v.  Carlisle,  51. 
Dickerson  v.  Carroll,  489. 

v.^Colgrove,  162,  167,  168. 

v.  Evans,   117. 

T.  Tillinghast,    162. 
Dickerson's  Appeal,  374. 
Dickey  v.  Lyon,  141. 

T.  Reed,    45. 
Dickinson  v.   Glenney,  145. 

T.  Hoomes'  Adm'r,  88. 

T.  Seaver,  285. 
Dickson  v.  Kempinsky,  308. 

T.  Robinson,    194. 
DiedrichB  T.  Railroad  Co.,  579t 
Diefendorf  T.  Spraker,  420. 
Diehl  v.  Page,  137. 
Digman  T.  McCollum,  145. 
Dilburn  v.  Youngblood,  527. 
Dillaye  T.  Bank,  437. 
Dillman   T.    Nadlehoffer,    291,    292, 

297. 

Dillon  T.  Parker,  181,  185,  195,  196, 
199. 


Dilworth  v.  Mayfield,  226. 
Dilworth'a   Appeal,   441. 
Diman  v.  Railroad  Co..  276. 
Dimmock  v.  Hallett,  289. 
Diugens  v.  Clancey,  179. 
Dinsinore  T.  Tidball,  303. 
Dinwiddie  v.  Self,  203. 
Disbrow  v.   Secor,  325. 
Distilled  Spirits,  In  re,  133,  135. 
Dittinan  v.  Repp,  5S9,  590. 
Dix  v.  Cobb,  300,  503. 
Dixie  v.  Wright,  238. 
Dixon  v.  Brown,  2U6. 

v.  Dixon,  489. 

v.  Gayfere,  485. 
Dobbs  v.  Norcross,  545. 
Dobson  v.  Racey,  333. 
Docker  v.  Somes,  429. 
Doctor  y.  Hellberg,  537,  545,  560. 
Dr.  David  Kennedy  Corp.  v.  Ken- 
nedy, 31. 
Dodd  v.  Bellows,  642. 

v.  Wakeman,  557. 

v.  Wilsou,  85. 
Dodge  v.  Briggs,  162. 

v.  Davis,  141. 

v.  Williams,  227,  228,  232. 
Doggett  v.  Lane,  332. 
Dolan  v.  Macdermpt,  389. 
Doloret  v.  Rothschild,  551. 
Dolphin  v.  Aylward,  513. 
Domestic   Telegraph   &   Telephone 

Co.  v.  Telegraph  Co.,  535. 
Donaldson  v.  Donaldson,  503. 

v.  Williams,  251. 
Donlin  v.  Bradley,  407. 
Donnelly  v.  Edeleii,  481. 
Donovan  v.  Finn,  47. 
Doolittle  v.  Cook,  148,  160. 

v.  Lewis,  406. 
Dorlarque  v.  Cress,  178. 
Dorn  v.  Fox,  643. 
Dorsey  v.  Thompson,  443. 
Dorwin  v.  Smith,  495. 
Doss  v.  Ditmars,  460. 
Dougherty  v.  Barnes,  193. 

v.  Hughes,  34. 
Douglas  v.  Insurance  Co.,  110. 

v.  Whitrong,   140. 
Douglass  v.  Fagg,  509. 

v.  Sittler,  29(5. 

v.  Stophenson's  Ex'r,  423. 

v.  Wiggins,  583. 
Dovey's  Appeal,   151. 
Dow  v.  Jewell,  407. 
Dowd  v.  Tucker,  417,  418. 
Dowling  T.  Lawrence,  303. 
Downer  v.  Church,  402. 
Downie  v.  Nettleton,  63£ 
Downing  v.  Blair,  451. 

v.  Dearborn,  303. 

T.  Marshall,  435. 
Downs  v.  Collins,  532. 
Dows  v.  City  of  Ohicago,  602. 
Doyle  v.  Blake,  420. 

v.  Stevens,  138. 

v.  Teas,  145. 
Dozier  T.  Mitchell,  277. 


GGo 


CASLS    CITED. 
[Tb«  figures  refer  to  pages.] 


Drake  v.  Glover,  179. 

v.  Latham,  29O,  297. 

v.   Hoot,  400. 
Dranga  v.  Rowe,  68. 
Dreuiian  v.  Douglas,  314, 
Dresel  v.  Jordan,  5uO._ 
Dresser  v.  Dresser,  305. 

v.  Wood,  154. 

v.  Zabriskie,  342. 
Dreutzer  v.  Lawrence,  85. 
Drewe  v.  Crop,  5iMJ. 
Drexel  v.  Berney,  (334. 
Drey  v.  Doyle,  120,  131. 
Driukwater  v.  Falconer.  217. 
Drosier  v.  Brereton,  428. 
Drost  v.  Hall,  010. 
Druce  v.  Denisou,  187. 
Druiumond  v.  Alteinus,  599. 

v.  Tracy,  357. 
Drury  v.  Haydeii,  278. 

v.   Holden,  401. 

v.   Inhabitants,  387. 
Dryden  v.  Frost,  489. 
Dubois  v.  Budlong,  588. 
Dubuque  &  S.   C.  R.  Co.  T.  Rail- 
way Co.,  570. 

Duclaud  T.  Rousseau,  450. 
Dudley  v.  Dudley,  344. 

v.    Hurst,    508. 

v.  Mayhew,  596. 
Duff  T.   Hopkins,   535. 

T.  McDonougn,  ir»2. 

v.   Kussell,  573,  577. 
Duffleld  v.  Elwes,  250. 
Dufford's  Ex'r  v.  Smith,  427. 
Duffy  v.  Shockey,  104. 
Duggan  v.  Slocum,  388. 
Du  Hourmelin  v.  Sheldon,  233. 
Duke  of  Aucaster  v.  Mayer,  482. 
Duke  of  Beaufort  v.  Neeld,  273. 
Duke  of  Somerset  v.  Cookson,  528. 

T.  Duchess  of  Somerset,  219. 
Dulfs  Appeal,  •;_'(_;. 
Dummer  v.  Pitcher,  186. 
Dunaway  T.  Robertson,  285. 
Duncan  v.  Hayes,  590. 

v.  Wallace,  482. 
Duncuft   T.   Albrecht,   528. 
Dungan  v.  Insurance  Co.,  57. 
Duugey  v.  Angove,  044. 
Dunkart   v.   Itinehart,   586. 
Dunklee  v.  Adams.  111. 
Dunklin  v.  Wilson.  306. 
Dunks  v.  Fuller,  334. 
Dunlap   v.    Burnett,    487. 

v.  Wilson,    137. 
Dunlop  v.  Gregory,  105. 
Dunman   v.   Coleman,  477. 
Dunn,  Ex  parte.  646. 

T.  Amos.  310. 

y.  Barn  tun.  109. 

T.  Chambers.   308. 

T.  Dunn,  327. 

T.  Flood.   fi38. 

v.  Miller,    025. 

v.  Haley.   477. 

V.  Record.   327. 
Dunne  v.  English,  326k 


Dunning  T.  Bank,  419. 
Duiiphy  v.  Ryan,  2. 
Duraud    v.    Lord,    153. 
Duraut  v.  Crowell,  131. 
Durette  v.  Briggs,  490. 
Durfee,  In  re,  443. 
Durham  v.  Rhodes,  193. 
Dursley  v.  Berkeley,  037. 
Dutton  v.  Pugh,  229. 

v.  Warschauer,   139,   450. 

v.  Willner,  325. 
Duyal  v.  Wellman,  73,  311. 
Dwight   v.   Hamilton,   576. 

v.  Lumber  Co.,  513. 

v.  Tyler,  277. 
Dwinel  v.  Brown,  107. 
Dyer  v.  Cady,  105. 

T.  Dyer,  80,  236,  246,  405,  409, 
410. 

T.  Hargrave,  79,  296,  297. 

T.  Martin,  487. 

v.  Shurtleff,  323. 
Dynaa  v.  McCulloch,  537,  550. 


Eads  v.  Retherford,  507. 
v.  Thompson,  342. 
v.  Williams,  541. 
Eagan  v.  Luby,  300. 
Eager  v.  Wiswall,  035. 
Eaglesfield   v.  Marquis  of  London- 
derry, 203. 
Earle  v.  Eaxle,  425,  433. 

v.  Hosiery  Co.,  320. 
Earl   of  Aylesford   v.   Morris,  309, 

310,  320. 
Earl    of    Chesterfield    v.    Janssen, 

283,  28G,  288.  315.  335. 
Earl  of  Durham  v.  Wharton,  215. 
Earl  of  Gleugall  v.  Frazer,  036. 
Earl  of  Grauard  T.  Dunkin,  599. 
Earl  of  Northumberland  v.  Earl  of 

Aylesford,    199. 
Earl    of   Oxford's   Case,   90,    569- 

571. 
Earl  of  Pomfret  T.  Lord  Windsor, 

2T.S. 

Earl  of  Portmore  v.  Taylor,  309. 
East  v.  Dolihite.  170. 

v.   Peden.    021. 
East     Birmingham     Land     Co.     T. 

Dennis.  fiU~>. 
Easterbrooks    v.    Tillinghast,    401, 

403. 

East  India  Co.  T.  Boddam,  41. 
v.  Campbell,    (J.H4. 
v.  Henchman,  32T>. 
Eastman  v.  Plitmer.  f>49. 
KM st wood  v.  Vinke,  205,  206. 
East   &    West   R,   Co.   v.    Railroad 

Co..  579. 

Eaton  v.  Benton.  205,  207. 
v.  Burns,    01. 
T.  Lyon,   111.   112, 
T.  Whitaker,  Dod. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


667 


Eaton,    Cole    &    Burnham    Co.    T. 

Avery,  21)6. 

Ebraud  v.  Dancer,  410. 
Ebriugtou  v.  iiibiiugtou,  198. 
Eby's  Appeal,  lu  re,  232. 
Eck  v.  Hatcher,  131. 
Eckstein  v.  Downing,  528. 
Eden  v.  Smith,  20i>. 
Edgerton   v.    Peckham,    111. 
Edgiugton  v.  Fitzniaurice,  289. 
Edison  Electric  .Light  Co.  v.  Elec- 
tric Co.,  71. 

V.  Lighting  Co.,  034. 
Edmestou  v.  .Lytle,  342. 
Edminster  v.  Higgius,  488. 
Edmonds  v.  Foiey,  035. 
Edmoudson  v.  Hays,  64. 
Edmouson  v.  Phillips,  489. 
Edson  v.  Bartow,  4<J3. 
Edwards  v.  Atkinson,  551. 

v.  Countess    of   Warwick,   233. 

v.  Freeman,    252,    253. 

T.  Morgan,  196. 

v.  1'aiKnurst,  494. 

v.  Peterson,    50O. 

T.  Rainier's  Ex'rs,  209. 

v.  Thompson,    141. 

V.  West,   231. 

v.  Williams,    109. 
Edwards'  Ex'rs  v.  Trumbull.  478, 

479. 

Egbert  v.  Brooks,  434. 
Egerton  v.  Brownlow,  380. 
Eggleston   v.    Wagner,   544. 
Ehle  v.  Brown,  140. 
Eichelberger  v.  Gitt,  490. 
Elbert  v.  O'Neil,  196. 
Elder  v.  Elder,  024. 
Eldridge  v.  Hill,  38. 
Elibank  v.  Montolieu,  66. 
Ellett   v.   Newman,   046. 
Ellice   v.    Koupell,   630. 
Ellicott  v.  Warford,  646. 
Ellig  v.  Naglee,  435. 
Elliot's    Appeal,    575. 
Elliot's  Ex'rs'  Appeal,  373. 
Elliott  v.  Elliott,  370. 

v.  Fisher,  232. 

v.-Sackett,  278,  621. 
Ellis  v.  Andrews,  291,  292. 

v.  Ron-man,   130. 

v.  I^wis,   191,  193,  194. 

T.  Railroad  Co.,  645,  046. 

v.  Selby,  403. 
Ellison  v.  Ellison,  252,  372,  373. 

v.  Fox,  276. 
Ells  v.  Tousley,  102. 
Elmore-  v.  Johnson,  327. 
El  rod  v.  Roller.  015. 
Elwell  v.  Chamberlain,  257. 
Ehvood  v.  Bunk.  047. 
Emack  v.  Kane.  580. 
Embrey  v.  Jemison,  310. 
Emeric  v.  Alvarado,  146. 
Emerson   v.   Atwater,  430. 

v.  Outlcr,  237. 
Emery  v.  Lawrence,  499. 
Emmanuel  College  v.  Evans,  84. 


Emmerson's  Case,  260. 
En  in  ions  v.  Bradley,  515. 

v.  Murray,  138,  143. 
Emperor  of  Austria  v.  Day,  679. 
Emuss  v.   Smith,  231. 
Eueberg  v.  Carter,  224,  234. 
England  v.  Curling,  532. 

v.  Downs,    344. 
Englar  v.  Offutt,  87,  438. 
English  v.   Motor  Co.,   590,   601. 
Eniuons  v.  Moore,  3O2. 
Euos  v.  Hunter,  92. 
Ensign  y.  Ensign,  454,  455. 

v.  Kellogg,  o27. 
Epes  v.  Williams'  Adm'r,  275. 
Epiey   v.   Witherow,   131. 
Equitable  Gaslight  Co.  v.  Mfg.  Co., 

71. 

Erhardt  v.  Boaro,  583. 
Erhman  v.  Kendrick,  153. 
Erickson  v.   Fisher,  299. 

v.  Rafferty,  128. 

v.  Smith,  487,  488. 
Erie  R.  Go.  v.  Ramsey,  570. 
Erkens  v.  Nicolin,  266. 
Eriauger  v.  1'hosphate  Co.,  328. 
Errington  v.  Aynesly,  531. 
Esch  v.  Insurance  Co.,  619. 
Eskridge   v.  Eskridge,  587. 

v.  McClure,  487. 
Etches  v.  Lence,  639. 
Ettiug  v.  Bank,  266. 

v.  Marx's  Ex'r,  57. 
Euneau  v.  Rieger,  325. 
Eutaw  Place  Baptist  Church  T. 

Shively,  395. 
Evans  v.  Bagshaw    612. 

v.  Bucknell,   178. 

v.  Coventry,  W50- 

v.  Edmonds,  294. 

v.  Enloe,  4S8. 

v.  Fertilizing  Co.,  590. 

V.  Forstall,  173. 

v.  Kingsberry,  558. 

v.  Llewelliu,    320. 
Evans'  Appeal,  In  re,  197,  240,  245. 
Evants  v.   Strode's  Adm'r,  260. 
Everett  v.  Dilley,  550. 
Everitt  v.   Everitt,  331. 
Eversdon  v.  Mayhew,  161. 
Everts   v.   Agnes,    161. 
E\-ertson  v.  Booth,  514,  515. 
Evroy  v.  Nicholas,  74. 
Ewer  v.  Hobbs,  451.  453. 
Evving  v.  Ewing.  92. 

v.  Litchfield.  IX ;. 
Ewins  v.  Gordon.  S'oS. 
Exchange     &     Deposit     Bank     of 

Onrngsville  v.  Stone,  193. 
Exchange  &  Deposit  &  Commercial 
Bank    of    Knoxville    v.    Bradley, 
490. 

Exhall  Coal  Co.,  In  re,  435. 
Exon  v.  Dancke,  141. 
Eylar  v.  Eylar.  141. 

v.  Read,  522. 
Eyre  v.  Everett,  42. 
Ezzell  v.  Watson,  466. 


668 


CASES    CITED. 
(Th«  figures  refer  to  pater] 


Fahnestock  T.  Fahnestock,  228. 
Fail-bank  v.  Cudworth,  584. 
Fairbanks  r.  Sargent,  504-506. 

v.  Suow,  819. 

Fairchild  v.  McMnhon,  202. 
Fairer  v.  Park,  206. 
Fairthorne  v.  Weston,  601. 
Falcke  v.  Gray,  539. 
Fall  T.  Hazelrigg,  557. 
Fall  River  Nat.  Bank  T.  Buffington, 

Fame'  Ins.  Co.'s  Appeal,  511. 
Fanning  v.  Dunham,  67,  73,  310. 
Fareira  v.  Gabell,  310. 
Farley  T.  Blood,  640. 
Farmer  T.  Martin,  345. 
Farmers'  Ex' re  v.  Farmer,  329. 
Farmers'  Loan  &  Trust  Oo.  v.  Malt- 
by,  138,  161. 

r.  Railroad  Co.,  154. 

T.  Telegraph  Co.,  93. 
Farmers'  Nat.  Bank  v.  Moran,  384. 
Farmers'  &  Mechanics'  Nat.  Bank 

v.  Railway  Co.,  513. 
Farnsworth  v.  Duffner,  295,  298. 
Farnum  v.  Brooks.  317. 
Farrar  v.  Churchill,  295,  287,  298 
Farris  v.  Dudley,  40. 

v.  Hughes,  560. 
Fanvell  v.  Cotting,  616. 
Fassett  v.  Sinitn,  144). 
Favill  v.  Roberts,  170. 
Fawcett  v.  Fawcett,  411. 
Fay  v.  Burditt.  355. 

r.  Fay,  33G.  406. 

v.  Tower,  172. 
Feamster  v.  Feamster,  323. 
Feara  v.  Lynch,  09. 
Fee  v.  Swinply.  450. 
Fellows  v.  Mitchell,  439. 
Fells  v.  Read,  528. 
Fenton  v.  Hughes,  631. 

T.  Judge.   612. 

v.  Steere,  612. 

Ferguson  v.  Stuart's  Ex'rs,  232. 
Ferrand    v.    Corporation    of    Brad- 
ford, 593. 

Ferrebee  r.  Pritchnrd,  344. 
Ferris  v.  Ferris.  Of). 

v.  Henderson.  56. 

v.  Spooner,  457. 

v.  Van  Vechten.  87,  418. 
Ferry  v.  Lnible,  .",»;~. 

v.  Sampson,  547. 
Feversham  v.  Ryder.  388. 
Field  v.  Chipley,  495. 

v.  Mayor,  etc.,  497,  499. 
Fielding  v.  Dn  Bose,  170. 

v.  Lucns,   570. 
Finrh  v.   Finch.  66. 
Findlay  T.  Bank.  512. 
Fink  T.  Bank.  282. 

T.  Insurance  Co.,  619. 

T.  Smith,  268. 
Finley  v.  McConnell,  75. 


Finnegan  T.  Fernandina,  46. 

Finucan  T.  Kendig,  624. 

First  African  M.  E.  Soc.  T.  Brown. 

545. 

First  Nat.  Bank  v.  Bank,  422. 
v.  Clark,  502. 
v.  Damm,  473. 


T.  Insurance  Co.,  160. 
T.  Kreig,  450. 


v.  Mills  Co.,  489. 

T.  Raihvav   Co.,  501. 

T.  Sarlis,  29. 

v.  Town   of  New  Milford,  185. 
Firth  v.  Railroad  Co.,  545. 
Fischbeck  v.  Gross,  418. 
Fish  v.  Benson,  163. 

T.  Cleland,  298. 

T.  Leser,  74.  308. 

v.  Miller,  331. 
Fishack  v.  Ball,  562,  619. 
Fisher  v.  Banta,  228,  229,  232, 

T.  Fisher,  160. 

T.  Fobs,  80. 

v.  Hersey,  285. 

v.  Mellen,  295. 

T.  Tunnard,   146. 
Fisher's  Ex'r  v.  Mossman,  173. 
Fiske  v.  Tolman,  462. 
Fitch  v.  Weber,  239,  241,  403. 
Fitzgerald  v.  Beebe,  451. 

v.  Stewart,  502. 

v.  Vestal,  360. 
Fitzhugh  v.  Wilcox,  316. 
Fitzmaurice  v.  Mosier.  268,  285. 
Fitzpatrick  v.  Cottingham.  102. 
Flach  v.  Gottschalk  Co.,  317. 
Flagg  v.  Ely,  430. 

v.  Mann,  84.  130,  139,  141,  144, 

157,  161. 

Flanders  r.  Chamberlain,  473. 
Fleetwood.  In  re.  418. 

v.  Brown,  270. 

Fleischner  v.  Investment  Co.,  40. 
Fleming  v.  Beaver,  512. 

v.  Bnrnham.  54.6. 

v.  Hislop,  589. 

v.  Newton,  579. 
Fletcher  v.  Ashburner,  78,  223,  226. 

v.  Dysche,  108. 

v.  Ferrel,    !."». 

v.  Holmes.  450. 

v.  Peck,  117. 
Flight  v.  Bolland.  536. 
Flint  v.  Clinton  Co.,  420. 
Florence  Min.  Co.  v.  Brown,  501. 
Fly  T.  Brooks,  2(V4. 
Flynn  T.  Kurd,  261. 
Fobes  v.  Railroad  Co.,  595. 
Fogg  T.  Price,  544. 
Foley  T.  Hill,  518. 
Folger  v.  Insurance  Co.,  651. 
Follansbee  v.  Johnson,  462. 
Follette  v.  Ass'n,   132. 
Foil's  Appeal,  527. 
Folsom  v.  McDonough,  105. 

T.  Marsh.  598. 
Foorman  v.  Wallace,  160. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


669 


Foose  v.  Whitmore,  369,  370. 
Forbes  v.  Ross.  323. 
Force  v.  City  of  Elizabeth,  42,  251. 
Ford  v.  Earl  of  Chesterfield,  96. 

v.  Ford,  228,  244. 

v.  Harrington,  73,  74. 

v.  Hennessy.  332. 

v.  Joyce,   022. 

v.  Knapp,  614.  615. 

v.  Marcall,  142. 

v.  Smith,   487. 

v.  Ticknor,  159. 
Ford's  Ex'rs  v.  Lewis,  375. 
Foreman  v.  Hough,  613, 
Forrer  v.  Nash,  548. 
Forrester  v.  Cotton,  185. 

v.  Flores,   557. 
Forster  v.  Hale,  362. 

v.  Ulman,  2. 

Forster's  Ex'rs  v.  Gillam,  303,  304. 
Forsytbe  v.  State,  314. 
Fortescufc   v.   Barnett,   373. 
Fortunato  v.  Patten,  504. 
Foster  v.  Deacon,  559. 

v.  Foster,  236. 

v.  Hall.   341. 

v.  MacKinnon,  268. 

v.  Winchester,  72. 
Fothergill  v.  Fothergill,  252. 
Fouch  y.  Wilson,  487. 
Fourdrin  v.  Gowdey,  206. 
Fourth  Nat.  Bank's  Appeal,  460. 
Fourth  St.  Nat.  Bank  v.  Yardley, 

502. 

Fowkes  v.  Pascoe,  215. 
Fowler  v.  Black,  262,  620. 

v.  Fay,  462. 

v.  Fowler,   208,   279. 

v.  Nott,  249. 

T.  Rust's  Heirs,  487. 

v.  Webster,  406. 
Fox  v.  Hall,  162. 

v.  Mackreth,  301,  323,  414. 

v.  Moyer,  3*38. 

v.  Palmer,  117. 
Foxworfh  v.  White,  435. 
Frail  v.  Ellis,  490. 
Fraker  v.  Brazelton,  547. 
Frame  v.  Frame,  556. 
Francts  v.  Wells,  437. 

v.  Wilkinson,  319,  320,  403. 
Frank  T.  Brtmnemann,  575. 

v.  Traylor,   511. 

Franklin  Sav.  Bank  v.  Taylor,  152. 
Franklin  Tel.  Co.  v.  Harrison,  539. 
Franks  v.  Bollans,  234. 
Fraser  v.  Passage.  340. 

v.  Trustees.   230. 
Frayne  v.  Taylor,  225. 
Frazer,  In  re,  193. 
Frazier  v.  Gelston,  179. 
Freedman's  Savings  &  Trust  Co.  T. 

Shepperd,  467. 
Freeman  v.  Auld.  461. 

v.  Brown,  629. 

v.  Cooke,  lfiT>,  174, 

v.  Eacho,  252. 


Freeman  v.  Freeman,  78,  652,  555. 

v.  Pope,   339. 

v.  Sedgwick,  75. 

T.  Staats,  318. 

T.  Stewart,  61. 

v.  Timanus,  33. 
Freemantle  v.  Bankes,  216. 
Frelinghuysen   v.   Nugent,  439. 
French  v.  Burns,  454. 

v.  Griffin,  290. 

v.  Loyal  Co.,  155. 

v.  Macale,  98. 
Frenkel  v.  Hudson,  134. 
Fresno  Canal   &   Irrigation   Co.   v. 

Rowell,  129,  131. 
Frey  v.  Clifford,  160. 

v.  Heydt,   203. 

Friedlander  v.  Railway  Co.,  505. 
Friend  v.  Lamb,  538. 
Frink  v.  Cole,  82. 

v.  Stewart.  585. 
Fritzler  v.  Robinson,  270. 
Fritz's  Estate,  In  re,  360. 
Frost  v.  Beekman,  159. 

v.  Spitley,  G28,  629. 
Frostburg  Coal  Co.  v.  Thistle,  555. 
Frue  v.  Houghton,  528,  537. 

v.  Loring,  285. 
Fry  v.  Platt,  325. 

v.  Shehee,  135. 
Fryer  v.  Rishell,  179. 
Fuchs  v.  Tieat.  277,  278. 
Fuller  T.  O'Neil.  424. 

v.  Percival.  285. 

v.  Yates,  192. 
Fullwood  T.  Fullwood,  52. 
Fulton  v.  Harman,  585. 

v.  Moore,  178.  192. 

v.  Whitney,  285. 
Fulton  Bank  v.  Canal  Co.,  134. 
Furlong  v.  Sanford,  320. 
Fussell  T.  Gregg,  629. 
Fytche  T.  Fytche,  200. 


Gafney  T.  Kenison,  390. 
Gage  v.  Bissell,  606. 

v.  Phillips,  268. 

v.  Schmidt,  628. 
Gaines  v.  City  of  New  Orleans,  114. 

v.  Fuentes,  596. 

v.  Summers,  128. 
Gains  v.  Chew,  285. 
Gainty  v.  Russell.  34. 
Galbraith  v.  Barnard,  253. 

v.  Lunsford,  168,  169. 
Gallagher  v.  Gallagher,  554,  556. 
Galle  v.  Tode,  340. 
Gallego's    Ex'rs   v.    Attorney    Gen- 
eral. 386,  395. 
Galveston,   H.  &  S.   A.   R.    Co.  T. 

Freeman,  494. 

Galway  v.  Railroad  Co..  586. 
Gamble  T.  Water  Co.,  601. 


c;o 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Gamewell    Fire-Alarm   TeL.    CJo.   T. 

Crane,  312. 

Gammon  v.  Howe,  106. 
Gangwere's  Estate,  In  re,  316. 
Gannon  v.  \Vhite,  373. 
Gans  v.  Thieme,  511. 
Gardner,  In  re,  370. 

v.  Hooper,  67. 

v.  NewburrfL  589,  593. 

T.  Ogden,   90,   92,   325,  414. 

v.  I'eckbam,  154. 

v.  Rowe,  3U2. 

Garland  v.  Harrington,  360,  494. 
Garrard  v.   Frankel,  620. 

v.  Lauderdale,  372,  373. 

T.  Lord  Lauderdale,  385. 

v.  Railroad  Co.,  160. 
Garrett   v.   Puckett,   150. 
Garrison  v.  Crowell,  117. 
Garvin's  Adm'r  v.  Williams,  331. 
Gascoigne  v.  Thwing,  4O8. 
Gaskell  v.  Gaskell,  611. 

v.  Viquesney,  468,  470. 
Gaslight  &  Coke  Co.  v.  Vestry  of 

St.  Mary  Abbotts,  578. 
Gasscn  v.  Hendrick,  161. 
Gaston  Trust,  In  re,  438. 
Gates  v.  Cornett,  318. 

v.  Steele,  572. 
Gatewood  v.  Hart,  146. 
Catling  v.  Newell,  294, 
Gault  v.  Wallis,  29. 
Gawtry  v.  Leland,  574. 
Gay  v.  Gay,  522. 

T.  Witherspoon,  320. 
Gaylord  v    City  of  Lafayette,  465. 
Gee  v.  McMillan,  487. 

v.  Pritchard,  579,   581,  598. 
Geiler  v.  Littlefield,  177. 
Genet  v.  President,  etc.,  568. 
George  v.  Andrews,  462. 

v.  Braddock,  376. 

v.  Kent,  150. 
Gerdine  v.  Menage,  264. 
German- American     Sav.     Bank     T. 

Fritz.  512. 
German-American  Seminary  v.  Kel- 

fer,  .",. 

German  Fire  Ins.  Co.  v.  Gueck,  619. 
German  Nat.  Bank  of  Hastings  v. 

K:ink.  68. 
Germantown  Passenger  R.   Co.  T. 

Fitler,  111. 

Gerrish  v.  Institution.  374. 
Gerry  v.  Stimson.  405. 
Gorson  v.  Pool,  159. 
(Jetty  v.  Binsse.  61. 

v.  Devlin,  285. 
Ginnella  v.  Momsen,  437. 
(JIM.™  v.  Smith,  443. 
r,il.»mns  v.  Hoag,  99. 
Gibson  v.  Gibson.  193. 

v.  Goldthwaite.  640,  645. 

T.  Herriott.  54. 

T.  In  go.  .r)L'.S. 

T.  Jey«>s,  H27. 

?.  Patterson,  549. 


Gibson   y.   Sup'rs,   45. 

v.  Woodward),  596. 
GiffVii  v.  Taylor,  4t>.">. 
Gifford  v.  Carvill,  290. 

v.  Corrigan,  462. 
Gilbert  v.  Port,  225. 

v.  Showerman,  591. 
Gilchrist  y.  Brown,  407. 

v.  Railroad  Co.,  45. 
Gill  v.  Rice,  523. 
Gillespie  y.   Moon,  279,  562. 

v.  Smith,  424. 
Gillett  v.  Wiley,  165,  168. 
Gilliam  v.  Alford,  265. 

v.  Brown,  205. 

v.  Cnancellor,  202,  208. 

y.  McCormack,  514. 
Gillies  v.  Longlands,  245. 
Gillings  v.  Fletcher,  205. 
Gilman  v.  Hamilton,  153. 

v.  McArdle,  364,  378. 
Gilmore  v.  Ham,  442. 
Gilpatrick  v.   Glidden,  417. 
Gilroy  v.  Alis,  280. 
Gingell  v.  Home,  286. 
Girard  Life  &  Trust  Oo.  T.  Cham- 
bers, 377. 

Girard  Trust  Oo.  v.  Mellor,  366. 
Gisborn  v.  Insurance  Co.,  80,  442. 
Gjerstadengen  v.  Hartzell,  176. 
Glass   v.    Hulbert,    279,    554,   557, 
624. 

v.  Hnrlburt,    280. 

v.  Rowe,  536. 
Glen  v.  Fisher,  67. 
Glenn  v.   Clark.   233. 

v.  Statler,  260. 
Glenorchy   v.  Bosville,  381. 
Glidden  v.  Hunt,  159. 

v.  Strupler,  179. 
Glidewell  v.  Spaugh,  137. 
Globe  Mut.  Life  Ins.  Oo.  T.  Reals, 

2S5. 

Glyn  v.  Duesbury,  642. 
Gobble  v.  Linder,  107. 
Goddard  v.  Pomeroy,  4831. 
Godden  v.  Kimmell,  52. 
Godfrey  v.  Black,  574, 

v.  Faulkner,  422. 

v.  Thornton.  179. 

v.  White,  614. 
Godwin  v.  Collins,  530. 
Goebel   v.   Iffla,  465. 
Goemhel  v.  Arnett,  476. 
Qoldenbergb  v.  Hoffman.  292. 
Goldsmid  v.  Goldsmid,  221. 
Goldsmith  v.  Bruuing,  73. 

y.  Goldsmith,  405. 

y.  Guild,  551. 
Goldsworthy  v.  Boyle,  578. 
Goldthwaite   v.    Bank,   505. 
Goliuger  y.  Earle,  336. 
Gollober  v.   Martin,    128. 
Golson  y.   Dunlap.  4:'.o. 
Goltra  v.  Sanasark,  2">8,  262. 
Goninan  v.  Stcphcnson,  300. 
Good  v.  Fichthorn,  37O. 


CASES    CITED. 
LThe  figures  refer  to  pages.  ] 


671 


GoodeJl   v.   Ass'n,   387. 
Goodenow  v.  Cuitis,  08. 
Goodiellow    v.    Goodiellow,    194. 
Goodhart  v.  Hyett,  579. 
Goodman  v.  Henderson,  313. 

v.  feiiiiouds,  159,  101. 

v.  Whitcomb.   048. 

v.  Winter,   3o. 

Goodrich  v.  City  of  Milwaukee,  382. 
Goodrich's  Estate,  lii  re,  305,  307. 
Goodwin  v.  Dean,  133. 

v.  Richardson,   GO. 

v.  Trust  Co.,    100. 
Goodwyn   v.    Goodwyn,   198. 
Gordon  v.  Butler,  291. 

v.  Gordon,  205. 

v.  McCulloh,   363. 
Gormly   v.   Clark,  40. 

y.  Gormly,    204,    265. 
Gosling  v.  Warburton,  191. 
Gothard  v.  Flynn,  478. 
Gott  v.  Cook,  233. 
Gough  v.  Crane,  529. 

v.  Manning,  193. 
Gould  v.  Asylum,  228,  232. 

v.  Bank,   3O5. 

v.  Emerson,   276. 

v.  Kemp,  539. 

v.  Lyiide,  4O4. 
Goulet  v.  Asseler,  24. 
Goundie  v.  Northampton  Oo.,  173. 
Gouverneur  v.  Lynch,  137. 
Governeur's    Heirs    v.    Robertson, 

359. 

Gowland  v.  De  Faria,  57,  309. 
Grabowski's  Settlement,  la  re,  *il. 
Graham   v.   Call,  545. 

v.  Graham,  205. 

v.  Hollinger,   289. 

v.  King,  424. 

v.  Meyer,  300. 
Gram  v.  Society,  391. 
Grammel  v.  Oarmer,  501. 
Grand  Rapids  School  Furniture  Oo. 

v.  Furniture  Co.,  580. 
Grand   Trunk  R.   Co.   v.   Railroad 

Co.,  31. 

Granger  v.  Crouch,  460. 
Grant  v.  Beronio,  501. 

v.  Ludlow's  Adm'r,  494. 
Grapengether  v.  Fejervary,  487. 
Graves  v.  Coutant,  489. 

v.  Dolphin,   377. 

v.  Rogers,   178. 
Gray  v.  Agnew,   172. 

v.  Coan,  117. 

v.  Crosby,  108. 

v.  Hook,  314. 

v.  Jordan,  407. 

v.  Oxnard  Bros.  Co.,  77. 

v.  Supreme  Dodge,  276. 
Graybill  v.  Braugh,  537,  561. 
Graydon's  Ex'rs  v.  Graydon,  312. 
Great  Falls  Co.  v.  Worster,  91,  142, 

451. 
Green  v.  Biddle,  480. 

v.  Bostwick,  652, 


Green  v.  Britten,   190. 

v.  Dietiich,  -1O8. 

V.  French,  597. 

v.  Givau,   119. 

T.  Jackson,  242. 

v.  Lyon,  2. 

V.  Feeso,  302. 

v.  Price,   1O8,   109. 

v.  Rick,  151. 

v.  Rock,    155. 

v.  Roworth,  320. 

V.  Sargeaut,    329. 

v.  Sevin,  551. 

v.  Sherrod,  454. 

T.  Slayter,  151. 

v.  Spicer,  377. 

v.  Stone,  619,  620. 
Greene  v.  Keeue,  47. 

v.  Mumford,   004. 

v.  Smith,  170,  201. 

v.  Tyler,  523. 

Greenfield  Gas.  Co.  T.  Gas.  Co.,  29. 
Greenfield's    Estate,    In    re,   331. 
Greeuhill  v.  Greenhill,  233. 
Greeno   v.   Barnard,  488. 
Greenough  v.  Gaskell,  634. 

v.  Small,  228. 
Greenwaldt  v.   May,   572. 
Greenway,  Ex  parte,  248,  251. 
Greenwood  v.  Greenwood,  209,  210. 

v.  Penny,  188. 
Greer  v.  Caldwell,  279. 

v.  Mezes,    21. 
Gregory  v.  Ingwersen,  532. 

v.  Wilson,    112. 
Gregson   v.   Riddle,   549. 
Gresham   v.   Peterson,   638. 
Gresley  v.  Mousley,  327. 
Gress  v.  Evans,  164. 
Gretton  v.  Haward,  183,  184 
Greville  v.   Browne,  482. 
Grey   v.   Grey,  400. 
Gribben  v.  Maxwell,  317. 
Gridley  v.  Andrews,  483. 

v.  Garrison,   34. 
Griffles  v.  Griffies,  613. 
Griflin   v.   Fries,   251. 

v.  Griffin,  478. 

v.  Hodshire,  464. 

v.  Sketol,  582. 
Griffin's  Ex'r  v.  Macaulay's  Adm'r, 

432. 

Griffin's  Will,  In  re,  391,  395,  396. 
Griffith  v.  Griffith,  152. 

v.  Ricketts,  230. 

v.  Sebastian  Co.,  270. 
Griffiths  v.  Sears,  310. 
Grigsby  v.  Breckinridge,  598. 

v.  Stapleton.  303. 
Grim's  Appeal.  179. 
Grimstone  v.  Carter,  64.  130,  143. 
Grissler  v.   Powers,   176,   177. 
Griswold  v.  Davis,  161. 

v.   Hazard,  92. 

Groenondyke  v.  Coffeen,  54,  55. 
Groff  v.  Bank,  142. 
Grossbach  T.  Brown,  619. 


672 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Groundie  v.  Water  Oo.,  122. 

Grubb  v.   Kolb,   253. 

Grubb'B  Appeal,   2£6. 

Gruhn  v.  Richardson,  487,  480. 

Crumley  T.   Webb,  325. 

Gruiisky  T.  Parlin,  340. 

Grynies  T.  Sanders,  272,  273,  282, 

334. 

Guckenheiiner  v.  Angevine,  513. 
Guffey  v.  O'Reiley,  121. 
Guggenheimer  v.  Groeschel,  338. 
Guignard  v.  Mayrant,  208. 
Guild  v.  Butler,  508. 

v.  Guild,   92. 

v.  Hull,  317. 

Guilmartin  v.  Urquhart,  623. 
Gulley  v.  Macy,  146. 
Gusdorf  v.  Ikelheimer,  515, 
Guthrie  v.  Walrond,  190. 
Gwynne  v.  Heaton,  308. 

H 

Haack  v.  Weicken,   186,  018. 
Hacker  v.  Barton,  37. 
Hackett  v.  Reynolds,  478. 
Hackley  v.  Draper,  285. 
Hadcock   v.   Osmer,   294. 
Hadden  v.  Spader,  46,  47. 
Haden  T.  Ass'n',  533. 
Haehnlen  v.  Ooin.,  57. 
Halter  v.   Strange,   141. 
Hagar  v.  Brainerd,  452. 

v.  Buck,  83,  492. 
Hagenbeck  v.  Arena  Oo.,  640. 
Haggerty  v.  Land  Co.,  648,  540. 
Habn  v.  Horstman,  102. 

v.  Hutchinson,  377. 
Haigh  v.  Kaye,  403. 
Haiues  v.  Carpenter,  640. 

T.  Lewis,  314. 

v.  Scott,    317. 

v.  Taylor,   579. 
Haldane  v.  Sweet,  306. 
Hale  v.  Plummer,  226. 

v.  Railroad   Co.,  651. 

v.  Wilkinson,  538. 
Hales  v.  Darell,  206. 
Halfhide  v.  Penning,  533. 
Hall  v.  Clagett,  280. 

v.  Hall,  249.  476. 

v.  Hardy,  533. 

v.  Hill,  191,  202,  203,  211 

T.  Joiner,  633. 

T.  Knappenberger,  331. 

v.  Morgan,  471. 

v.  Piddoc-k,  608,  610,  61ft. 

v.  Reed.  2o7. 

T.  Sands,  338. 

T.  Stout,  637. 

T.  Tunnell,  4J51. 

T.  Warren,  527,  535. 

v.  Wheeler,  264,  265. 
Hallara  v.  Corlett,  280. 
Hallett,  In  re,  437. 

T.  Cumston,  520. 


Hallett's  Estate,  In  re,  87. 
Hall's  Appeal,  566,  576. 
Halsey  v.  Grant,  526. 
Halverson  v.  Brown,  117. 
Ham  T.  Johnson,  544. 
Hamaker  v.  Schroers.  108,  110. 
Hamblin  T.  Bishop,  308. 
Ham  brick  v.  Crawford,  572. 

v.  Russell,  464. 
Hamilton  v.  Phillips,  607. 
Hamilton  Trust  Co.  v.  Clemes.  40. 
Hamlin  v.  Hamlin,  167. 

v.  Wright,  652.  . 
Hammatt  T.  Emerson,  290. 
Hammersley  v.  De  Biel,  50. 
Hammond  v.  Hopkins,  54,  323,  442. 

v.  Messenger,  492,  496. 

T.  Paxton,  153. 

v.  Peunock,  282,  285,  292. 

T.  Peyton,  489. 

v.  Winchester,  585. 
Hammonds  v.  Barclay,  474. 
Hanby  y.  Roberts,  510. 
Hancock  v.  Harper,  54. 

v.  McAvoy,  150. 
Handley  v.  Heflin,  633. 

v.  Palmer,  357. 
Hanks  v.  Naglee,  314. 
Hanly  v.  Morse,  143. 
Hanner  v.  Monlton.  305. 
Hanold  v.  Kays,  KK),  161. 
Hansen  v.  Rounsnvell,  522. 
Hanson  v.  Eclgerly,  303. 

v.  Hanson,  484. 

v.  Keating,  (55,  66. 

v.  Willard.  012,  613. 

v.  Worth instou,  41?<>. 
Hanstein  v.  .Johnson,  HD. 
Hnpgood  v.  Rosenstock,  528. 
Harbaugh  v.  Hohn.  285. 
Harheck  v.  Pupin,  GO. 
Harbers  v.  Gadsden,  560. 
Harfloman  v.  Bnttershy,  251. 
Hardin  T.  Hardin.  451. 
Harding  v.  Glucose  Co.,  312. 

v.  Lamed,  427. 

v.  Long,  279.  623. 
Hardinghnm  v.  Nicholls,  158. 

v.  Thomas.  202. 
Hardman  v.  Ellames,  636. 
Hardwicke  v.  Vernon,  56. 
Hardy  v.  Martin.  98. 

v.  Summers,  143. 
Harford  v.  Furrier,  559. 
Hargro  v.  Hodgdon.  588. 
Harker,  Ex  parte.  638. 
Harkinson's  Appeal,  573. 
Harper  v.  Crawford,  33. 

v.  Ely.  99,  126.  468. 

v.  McElroy,  587. 
Harper's  Appeal,  454. 
Harral  T.  Gray,  120. 
Harrington  v.   Bigelow,  71,  7*. 

v.  Brewer,  290. 

T.  Keteltas.  421. 

v.  Pier.  227. 
Harris  T.  Bannon,  467,  584. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


673 


Harris  y.  Cornell,  285. 

v.  Hanie,  488. 

y.  Harris,  358. 

Y.  Hillegass,  55. 

v.  Pullman,  92. 

v.  Tyson,  301.  307. 

v.  Warner,  509,  510. 

v.  White,  310. 

Harris  Drug  Co.  v.  Stucky,  600. 
Harrison  v.  Gibson,  53,  57. 

v.  Guest,   317. 

T.  Nettleship,  572. 

v.  Smith,  438. 

T.  Trust  Co.,  443. 

v.  Wright,  501. 
Hart  T.  Hart,  544. 

V.  Sansom,  89. 

T.  Seymour,  383. 

T.  Smith,  68. 

v.  Swaine,  293. 
Hartford    Live-Stock    Ins.    Co.    T. 

Matthews,  295. 
Hartford  &  S.   Ore  Co.  T.   Miller, 

278. 

Hartley  T.  Tapley,  499. 
Harvard  College  v.  Amory,  427. 
Harvey  T.  Aston,  312. 

v.  Varney,  75. 

v.  Woodhouse,  158. 
Haskell  v.  Haskell,  635. 
Haslet  v.  Haslet,  555. 
Hastings  T.   Clifford.   193. 
Hatch  v.  City  of  Buffalo,  627. 

v.  Hatch,  328,  331. 

v.  Smith,  340. 
Hatcher  v.  Hall,  53. 
Hatch's  Estate,  In  re,  194. 
Hathaway  v.  Hathaway,  193. 
Haughwout    T.    Murphy,    79,    159, 

161  485 
Haven  v.  'Foster,  258,  268. 

v.  Mehlgarten,    480. 
Havens  v.  Havens,  192. 

v.  Sackett.  185,  186. 
Haviland  v.  Bloom,  67. 

v.  Willets,  260,  261. 
Haward  v.  Peavey,  224,  228. 
Hawes  v.  Oakland,  601. 
Hawker  T.  Moore,  59. 
Hawkins,  Ex  parte,  235. 

T.  Day,   252. 

T.  Holmes.  556. 

v.  McDougal,  611. 
Hawley  v.  Clowes,  584. 

v.  James,  233,  24J.  391,  424. 
Haworth  v.  Taylor,  141. 
Hawralty  v.  Warren,  260. 
Hawthorne,  In  re,  94. 
Haydel  v.  Hurck.  435. 
Hayden  v.  Bucklin,  153. 

v.  Cabot,  510. 

v.  Moffatt,   146. 

Haydock's  Ex'rs  v.   Haydock,  820. 
Hayes  v.  Livingston,  167. 

T.  Nourse,   152,   163. 

v.  Ward,  510. 
Hayes'  Appeal,  408,  613. 
EATON.EQ.— 43 


Haygarth  v.  Wearing,  292. 
Haynes  v.  Haynes,  235. 

v.  Nice,  523. 

v.  Thompson,  499. 

v.  Waite,  523. 
Haynesworth  v.  Cox,  345. 
Hays  v.  Quay,  366. 
Haythorn  v.  Margerem,  33. 
Hayward  v.  Andrews,  492. 

v.  Bank,  54. 

v.  Hayward,  580. 
Haywood  v.  Cope,  301. 
Hazelrigg  v.  Bronaugh,  648. 
Headley  v.  Bell,  572. 
Heard  v.  Bowers,  109. 

v.  Stanford,  48. 
Hearst  v.  Pujol,  264. 
Heath  v.  Bank,  34. 

v.  Railway  Co.,  633,  634. 

v.  Waters,  431. 

v.  Williams,  593. 
Heatwole  v.  Gorrell,  109,  110. 
Heavenridge  v.  Mondy,  260. 
Hedderly  v.  Johnson,  545,  547. 
Hedge  v.  Lowe,  313. 
Hedges  T.  Dixon  Co.,  49. 
Heermans  v.  Burt,  366. 
Heffran  v.  Hutchins,  578. 
Heilbron  v.  Water  Co..  593. 
Heine  v.  Com'rs,  46,  47. 
Heiskell  v.  Trout,  403. 
Heisler  v.  Sharp's  Ex'rs,  206. 
Heiss  v.  Murphey,  390. 
Hellams  v.  Abercrombie,  510. 
Hellman  v.  Davis,  56. 

v.  McWilliams,  372. 
Hellreigel  v.  Manning.  545. 
Helm  v.  Boyd,  454,  455. 
Hemphill  v.  Ross,  451. 

v.  Yerkes,   502. 
HemphilPs  Appeal,  428. 
Hemsley  v.  Myers,  29. 
Hendee  v.  Cleaveland,  323. 
Henderson  v.  Dickey,  271. 

T.  Rothschild.   385. 

v.  Truitt,  471. 

v.  Wanamaker,   138. 
Hendrick  v.  Whittemore,  507. 
Hendricks  v.  Kelly.  121. 
Hendrickson  v.   Hinckley,  572. 
Henkle  v.  Assurance  Co.,  622. 
Henley  v.  Hotaling,  456. 
Hennessey  v.  Carmony,  590. 

v.  Woolworth,  529,  544. 
Hennessy  v.  Metzser,  102. 
Henry  v.  Davis.  469. 

v.  Henry,  557. 
Henshaw  v.  Wells,  452. 
Henson  v.  Wright,  382. 
Hepburn  v.  Anld,  558. 

v.  Dunlop,  547. 
Herbert  v.  Bronson,  360. 

v.  Herbert,  254. 

v.  Railway,  98. 

v.  Wren,   194.  616. 
Hercy  v.  Birch,  532. 
Herae  v.  Meeres,  322. 


674 


CASES    CITED. 
[Tb«  Cgureg  refer  to  paces.] 


Herrlck  T.  Lynch,  74. 

Herrington  v.  McOollum,  168,  460. 

T.  Williams,  629. 
Herron  v.  Herron,  298. 
Hersey  v.   Turbett,   153. 
Hervey  v.   Hervey,   281. 
Heslop  v.  Gatton,  482. 
Hess  T.  Singler,  370. 
Hess'  Appeal,  364. 
Hess'  Estate,  In  re,  511. 
Hetneld   T.   Debaud,  426. 
Hetzel  T.  Barber,  120,  240. 
Heuser  v.  Harris,  395. 
Hewes  v.  Wiswall,  139. 
Hewlett  v.   Pilcher,  117,  163. 

v.  Wood,  614. 
Hexter  v.  Bast,  293. 
Heyder  T.  Ass'n,  64,  116,  122. 
Hey  wood  v.  City  of  Buffalo,  602. 
Hiatt  v.  Williams,  552. 
Hibbs  v.  Insurance  Oo.,  184. 
Hickman   v.   Green,  132. 

v.  Painter,   251. 
Hicks  v.  Oompton,  586. 

v.  Hicks,  648. 

v.  Stevens,  291,  297,  208. 
Hide  v.  Haywood,  435. 
Hiern  v.  Mill,  140. 
Hiester  v.  Green,  488,  490. 
Higgins    v.    Breen,    494. 

v.  White,  138. 
Higginson  v.  Turner,  357. 

v.  Weld,  109. 
High  v.  Worley,  245. 
Highberger  v.  Stiffler,  318,  332. 
Highway  v.  Banner,  185. 
Hile  v.  Davison,  601. 
Hill  v.  Arnold,  649. 

v.  Barclay,   112. 

T.  Bishop  of  London,  400, 

T.  Blackwekier,  121. 

T.  Buckley,  560. 

T.  Cook,  239. 

T.  Epley,  122.  173. 

T.  Gregory,  GIG. 

T.  Grigsby,  485. 

T.  Hart-Davies,  580. 

T.  Hoole,  505. 

y.  Insurance   Co..   619. 

T.  Lane,  284. 

T.  Oliphant,    153. 

v.  Scotland  Co.,  154. 

T.  Staples,  573. 

v.  Thompson,  596. 
Hillman  v.  Hurley,  587. 
Hills  v.  Miller,  178. 
Hill's  Adm'r  v.  McCarter,  148. 
Hilton   v.   Earl  of  Granville,   568, 

578. 

Himes  T.  Langley,  334. 
Hinchinjrbroke  v.   Seymour,  345. 
Minckley's    Estate.    In    re,   895. 
Hinde  v.  Blake,  496. 
Hine  T.  Hine.  203. 
Hinkle  v.  Margerum,  601. 
Hinson   v.  Williamson,  431. 
Uiuton  T.  Fox,  33. 


Hipp  v.  Babin,  32. 
Hitchins  v.  Pettingill,  280,  557. 
Hitchman  T.  Stewart,  508. 
Hoag  T.  McGinnis,   108. 
Hoagland  v.  Segur,  104. 
Hobart   v.   Oomitiss,   402. 

v.  Sanborn,  451. 
Hobbs  v.  McLean,  435. 
Hobday  v.  IVters,  331. 
Hobson  v.  Trevor,  496. 
Hocker  v.  Gentry,  230. 
Hockett  v.   Bailey,   179. 
Hodge  v.   Giese,   568. 
Hodges  v.  King,   107. 

v.  Rowing,   35. 
Hodge's    Ex'r    v.    A  merman,    138, 

140. 
Hodgson  v.  Baldwin,  508. 

v.  Raphael,  325. 

v.  Shaw,    512. 
Hoffen's  Estate,  In  re,  395. 
Hoffman  v.  Harrington,  470. 

v.  Junk,  338. 

v.  Mackall,  382. 

v.  Strokecker,  147. 
Hoffner's   Estate,   In   re,  46, 
Hogan  v.  Jacques,  400. 

v.  Kavanaugh,  482. 
Hogg    v.    Kirby,    595. 
Holbrook  v.  Connor,  291,  292, 

v.  Payne,  501. 

v.  Zinc  Co.,  152,  154,  155. 
Holdane  v.  Trustees,  175. 
Holden  v.   Bank.   134-136. 
Holdridge  v.  Gillespie,  469. 
Holland  v.  Adams,  237. 

v.  Brown,   138. 

v.  Cruft,  237. 

v.  Peck,  39G. 
Hollenback's  Appeal,  619. 
Hollenbeck  v.  Donnell,  650. 
Holies  v.  Wyse,  101. 
Holley  v.  Hardeman,  522. 
Holliday  v.  Overton,  367. 
Holliugshead  v.  Webster,  52. 
Hollingsworth  v.  Stone,  261. 
Hollinshead  v.  Sirnnis,  412. 
Hollis  v.  Francois,  332. 
Hollocher  v.  Hollocher,  320. 
Holloway  v.  Holloway,  609,  613. 

v.  Radcliffe,  245. 
Holl's  Appeal,  382. 
Holman  v.   Patterson,  489. 
Holmes  v.  Dring,  427. 

v.  Fresh.  308. 

v.  Gardner,  117. 

v.   Holmes.  .153. 

v.  Mead.   359,  391. 

T.  Powell,   138. 

v.  Railroad    Co.,   54. 

v.  Stout,  140. 

Holmes'  Appeal,  In  re,  297,  542. 
Holroyd    v.     Marshall,    476,    497, 

499. 

Holsman  v.  Bleaching  Co.,  594. 
Holt  v.  Daniels,  518. 
Uolton  T.  Noble,  290. 


CASES    CITED. 
[The  figures  refer  to  paces.] 


675 


Homer  v.  Homer,  87. 

v.  Perkins,  291. 

Honore's  Ex'r  v.  Bakewell,  480. 
Honzik  v.  Delaglise,  139. 
Hood  v.  Fahuestock,  117. 

v.   Hood,  227,  232. 
Hoodless   v.   Reid,   99. 
Hooker  v.  Axford,  417. 
Hooley  v.  Hatton,  209. 
Hooper  v.   Hooper,   391. 

v.  Smart,  560. 

v.  Winston,    646. 
Hoopes  v.  Dundas,  312. 
Hoover  v.  Hoover,  408. 
Hope  v.  Liddell,  157. 
Hopkins  v.   Garrard,   142. 

v.  Oilman,  533,  545. 

V.  Hopkins,  353. 

T.  McLaren,   151. 

T.  Watt,   302. 
Hopkins'  Appeal,  438. 
Hopkinson  v.  Forster,  601, 

v.  Roe,  435. 
Hopper  v.  Oonyers,  439. 
Hoppin  v.  Doty,  131. 
Hoppock's   Ex'rs   v.   Railroad  Ob., 

633. 

Horbach  v.  Hill,  339. 
Horn  v.  Cole,  167,  172,  174. 

v.  Keteltas,  454. 
Horner  v.  Graves,  312. 
Horstman   v.    Kaufman,    634. 
Horton  v.  Handvil,  301. 
Hosleton  y.  Dickinson,  278. 
Hotopp  v.  Huber,  60. 
Hottenstein   v.    Lerch,    139,   141. 
Hotz's  Estate,  In  re,  312. 
Houghton   v.   Davenport,  438. 
Hoult  v.   Donahue,   62. 
Houston  v.  Bryan,  323. 

v.  Faul,   39. 

v.  Timmerman,  152,  154. 
Hout  v.  Hout,  252. 
Hovey  v.  Dary,  237. 

v.  Storer,  314. 
How  v.  Vigures,  447. 
Howard  v.  Carpenter,  281. 

v.  Ohase,   150. 

v.  Folger,  638. 

v.  Harris,  448. 

v.  Hudson,  174. 

v.  Kennedy's  Ex'rs,  153. 

v.  Moffatt,  67. 

T.  Robinson,   451. 

v.  Watson,    192,    195. 

v.  Woodward,    108. 
Howard  Ins.  Co.  v.  Halsey,  148. 
Howe,  In  re,  357,  476. 

v.  Earl  of  Dartmouth,  428. 

v.  Harding,  488. 

v.  Howe,  320. 

v.  Nickerson,    533. 
Howell  v.  Baker,  302. 

v.  Moores,  42. 

v.  Railroad  Co.,  99. 
Howell   Bros.    Shoe    Co.   T.   Mars, 
343. 


Howe  Mach.  Oo.  v.  Farrington,  17L 
Howorth  v.  Dewell.  365. 
Howze  v.  Mallett,  213,  21& 
Hoxie  v.  GaiT,  154. 
Hoy  v.  Bramhall,  129,  131,  148. 
Hoyt  v.  Godfrey,  337,  341. 

v.  Hoyt,  482,  483. 

v.  Thompson,  493,  494. 
Hubbard  v.  Miller,  573. 

v.  Weare,  293. 
Hub  bell  v.  Meigs,  289,  29L, 
Huckaba  v.  Abbott,  457. 
Hudkins  v.  Ward,  514,  515. 
Hudson  v.  Bartram,  550. 

v.  Dismukes,  515. 
Huff  v.  Shepard,  544. 
Huggonson's  Case,  579. 
Hughes,  Ex  parte,  325,  414. 

v.  Berrieu,  159. 

v.  Jones,  316,  560. 

v.  Morris,  566. 

v.  Noyes,  340. 

v.  Wells,  281. 
Hughlett  v.  Harris,  37. 
Hugonin  v.  Basely,  646. 
Huguenin  v.  Baseley,  330,  332. 

v.  Courtenay,  539. 
Hukill  v.  Yoder,  76. 
Hulett  v.  Fairbanks,  112. 
Hull   v.   Noble,    139. 

v.  Pitrat,  528. 

Humane  Fire  Co.'s  Appeal,  306. 
Hume  v.  Dixon,  64. 

v.  Franzen,  131. 

v.  Richardson,  428. 
Humphreys  v.  Merrill,  120. 
Hun  y.  Cary,  422,  431. 
Hunkins  v.   Hunkins,   550,  550. 
Hunnewell  v.  City  of  Oharlestown, 

602. 

Hunsinger  v.  Hofer,  338. 
Hunt,   In  re,  428. 

v.  Dunn,   128. 

v.  Fowler,  387,  395,  309. 

v.  Hardwick,   334. 

T.   Hunt,   285. 

v.  Johnson,  145. 

T.  Peake,  592. 

T.  Rousmanier's    Adm'rs,    260, 
262. 

T.  Rowland,  76. 

v.  Smith,   561. 

v.  Steese,  583. 
Hunter  v.  Anderson,  234. 

v.  Bilyeu,  280. 

v.  Dennis,   470. 

v.  Hunter,  24. 

v.  McLaughlin,   290. 

v.  Walters,  268. 

v.  Watson,  119,  148. 
Hunt's   Appeal,   227. 
Hupsch  y.  Resch,  623. 
Hurguenin   v.   Baseley,   80. 
Hurlbut  v.  Phelps,  85. 
Hurst  v.  Beach,  211. 
Huss  v.  Morris,  252,  260,  278. 
Huston's  Appeal,  516. 


676 


CASES    CITED. 
[The  flffUTM  refer  to  pages.] 


Hutcheson  v.  Hammond,  242. 
Hutchins  v.  Van  Vechten,  363. 
Uutchinson  v.  Ainsworth,  279. 

v.  Gilbert,   483. 
Hutsell  v.  Crewse,  621. 
Button  v.  Button,  91. 
Huxley  v.  Rice,  286. 
Hyde   T.   Baldwin,    192. 

v.  Woods,  377. 
Hyett  v.  Mekin,  236. 
Hyland  v.  Hyland,  621. 
Hylton  T.  Hylton,  328,  331. 

I 

lauch  T.  De  Socarras,  342. 

Iglehart  T.  Orane,  148. 

Ikerd  v.  Beavers,  530. 

Illinois  Cent  R.  Co.  v.  McOullough, 

139,  142. 
Illinois  Land  &  Loan  Co.  v.  Bon- 

ner,  355. 

Imbert,  Ex  parte,  522, 
Imperial   Gaslight  &  Coke  Co.   T. 

Broadbent,  579. 

Indianapolis  Water  Oo.  v.  Straw- 
board  Co.,  594. 
Ingle  v.  Richards,  323. 
Ingles  T.  Merriman,  622. 
Ingraham    v.    Ingraham,    388. 
Ingram  v.  Kirkpatrick,  386. 

v.  Morgan,  64. 
Innerarity  v.  Bank,  134. 
Innes  v.  Lansing,  45. 

v.  Sayer,  252,  281. 
International  Bank  v.  Sherman,  58. 
Interocean  Pub.  Co.  v.  Associated 

Press,  68. 
I  rick  v.  Black,  510. 
Irish    American    Bank    v.    Ludlum, 

177. 
Iron  Age  Pub.  Co.  v.  Telegraph  Co., 

531,  536.  544. 
Irvine  v.  Grady,  132. 
v.  Irvine,  355. 
T.  Sullivan,   401. 
Irving  v.  Campbell.  560. 

T.  Thomas.  297. 
Irving  Nat.  Bank  v.  Alley,  172. 
Irwin  v.  Lewis,  567. 

v.  Williar,  310. 
Isaacs  v.  Strainka,  542. 
Isaacson  v.  Harwood,  440. 
Iverson  v.   Saulsbury,  441. 
Ives  v.  Ashley,  329. 
v.  Hazard,  537. 
v.  Stone,  146. 

J 

Jackens  v.  Nicholson,  527. 
Jackman  T.  Mitchell.  336. 
Jackson  v.  Allen,  171. 

v.  Andrews.  151,  275,  276. 

T.  Baker,   109. 


Jackson  v.  Cadwell,  75. 
v.  Dubois,  119. 
v.  Duke  of  Newcastle,  589. 
T.  Edward,  561. 
v.  Garnsey,  75. 
v.  Jackson,  442. 
v.  Lynch,  159,  456.  470. 
y.  Phillips,  376,  386,  394. 
v.  Post.  131. 
v.  Tuttle,  154. 
v.  Veeder,  345. 
Facob  v.  Lucas,  422. 
Facobus    v.  Munn,  430. 
Facomb  v.  Knight,  566. 
Facoway  v.  Gault,  146. 
Jacques  v.  Fackney,  513. 
Jaeger  v.  Kelley,  341. 
Jaggar  v.  Winslow,  290. 
James,  Ex  parte.  266,  323. 
v.  Brown,   14S. 
v.  Cowing,  421. 
v.  Litch  field,  140. 
Jamison  v.  Dimock,  139. 
Janes  v.  Throckmorton,  227. 

v.  Trustees,  303. 
Janney  v.  Espedden,  33. 
Jaques  v.  Swasey,  216. 
v.  Weeks,  141,   143. 
Jaquith  v.  Hudson,  104,  108. 
Jarman  v.  Jarman's  Heirs,  198. 
Jaudon  v.  Ducker,  483. 
Jefferies  v.  Michell,  206. 
Jefferys  v.  Boosey,  597. 

v.  Smith,  G49. 
Jeffries  v.  Evans,  505. 
v.  Ferguson,  508. 
v.  Jeffries,  560. 
Jemrnison  v.  Gray.  106. 
Jenkins  v.  Clement,  339. 
v.  Frink,  87. 
v.  Hannan.  33. 
v.  Kemis.  248. 
v.  Pye,  309. 
v.  University,   403. 
Jenninps  v.  Moore,  460. 

v.  Wood,  147. 
Jennison  v.  Leonard,  551. 
Jenny  v.  Crnse,  579. 
Jenny  v.  Preston.  236. 
Jerome  v.  MoOnrter,  650. 

T.  Ross,  585. 
Jerrard  v.  Snunders.  156. 
Jervoise    v.    Duke   of   Northumber- 
land, 546. 

Jessopp  v.  Watson,  241,  242. 
Jew  v.  Wood,  64J5. 
Jewett  v.   Bowmnn,  285,  518. 

v.  Palmer,  102. 
Job  v.  Job,  423. 
John  v.  Battle,  131. 
John    A.     Koebling    Sons'    Co.    T. 

Bank,  586. 
Johns  v.  James.  385. 
v.  Johns,  555. 
v.  Norris.  7<i. 
Johnson  v.  Bartlett.  5 
T.  Bloodgood,  492. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


677 


Johnson  T.  Brooks,  527,  528. 

v.  Gushing,  281. 

T.  Dougherty,  87. 

T.  C4ibson,  92,  163. 

T.  Gwinn,  104. 

y.  Holifield,  395. 

T.  Hoover,  533. 

T.  Houston,  451. 

v.  Lawrence,  307. 

T.  Leman,  435. 

v.  Medlicott,  318. 

v.  Moore,  513. 

T.  Moser,  612. 

v.  Newton,  423. 

v.  Telford,   189. 

T.  Thomas,  522,  523. 

v.  Thompson,  461. 

v.  Tucker,  652. 

T.  Webster,  236. 

v.  Wild,  508. 

v.  Williams,  162. 

v.  Zink,  461. 

Johnson's  Adm'r  v.  Hunt,  311. 
Johnson's  Appeal,  443. 
Johnson's  Ex'rs  v.  Ketchum,  521. 
Johnston  v.  Trippe,  537. 

v.  Wadsworth,   537. 
Joliffe  v.  Baker,  288. 
Jolland  v.  Stainbridge,  129. 
Jones  v.  Alephsin,  639. 

v.  Bolles,  284. 

v.  Caldwell.  227,  229,  232. 

v.  Chiles,  154. 

T.  Creveling's  Ex'rs,   209. 

T.  Frost,  179. 

v.  Gibbons,  503. 

T.  Habersham,  387. 

v.  Henderson,  442. 

T.  Indemnity  Co.,  457. 

v.  Jones,  189,  285,  618. 

v.  Keep's  Estate,  60. 

y.  Langhorne.  69. 

y.  Lewis,  253. 

v.  Lloyd,  441. 

y.  Lock,  374. 

y.  Loekard.  487,  489. 

v.  Marks,  137. 

v.  Mason.  202,   216. 

y.  Mill  Corp.,  4. 

y.  Newhall,  527. 

y.  Pugh,  634. 

v.  Renshaw.  396. 

y.  Robbins,  550. 

v.  Roberts,   146. 

y.  Sampson.  639. 

v.  Smith.  139.  140,  149,  473. 

y.  Van  Doren.  80,  616. 

y.  Williams,  522. 
Jones'  Adm'r  v.  Shaddock,  437. 
Jordan  v.  Cheney,  460. 

y.  Lanier,  585. 

y.  Miller,  648. 

y.  Sayre,  450. 

y.  Stevens,  261. 

y.  Volkenning.  292. 
Joseph  y.  Fisher,  233. 


Joseph  v.  Macowsky,  75. 

Joy  v.  City  of  St.  Louis,  45,  532. 

Judson  v.  Dada,  150. 

y.  Miller    624. 
Justice  v.  Wynne,  503. 
Juvenal  y.  Jackson,  161. 
Juzan  v.  Toulmin,  275,  300. 


Kahn  y.  Walton,  71,  78. 
Kain  y.  Gibboney,  390. 
Kamena  v.  Huelbig,  505. 
Kane  v.  Vanderburgh,  582. 
Kannady  v.  McCarron,  451. 
Kansas  City  Land  Co.  v.  Hill,  150. 
Kansas  &  A.  V.  R.  Co.  v.  Fitzhugh, 

Katz  v.  Brewington,  648. 
Kauffelt  v.  Bower,  485,  488. 
Kay  v.  Kirk,  594. 

v.  Whittaker,   465. 
Kearney  y.  Macomb,  189. 

v.  Vaughan,  252. 
Kearny  v.  Jeffries,  633. 
Keate  y.  Phillips,  106. 
Keates  y.  Earl  of  Cadogan,  300. 
Keating  v.  Sparrow,  112. 
Keck  v.  Bieber,  107. 
Keeble  v.  Keeble,*  107. 
Keech  v.  Hall,  449. 

v.    Sandford,  80,  325,  414. 
Keen  y.  Coleman,  179. 
Keenan  v.  Insurance  Co.,  133. 
Keene  v.  Kent,  77. 
Keighler  v.  Mfg.  Co.,  325. 
Keigwin  v.  Com'rs,  603. 
Keisselbrack  v.  Livingston,  280. 
Keister  v.  Myers,  275,  621. 
Keith  v.  Kellam.  326. 

v.  Miller,  407. 

Kekewich  y.  Manning,  372,  373. 
Keller  v.  Ashford.  463. 

v.  Harper,  229. 

v.  Ogsbury,  582. 
Kelley  v.  Mayor,  etc..  501. 
Kellogg  v.  Aldrioh,  285. 

v.  Moore.  33. 
Kelly  v.  Christal,  285. 

v.  Kauffman.  508. 

v.  Kelly,  513. 

y.  Kelly's  Ex'rs,  208, 

y.  Kendall.  542. 

y.  McGrath.  344. 

v.  Nichols.  378. 

y.  Railroad  Co.,  539,  542. 

y.  Smith,  317. 

y.  Polari.  257. 

y.  Turner.  260. 
Kelso  y.   Reid.  104. 
Kemble  y.   City  of  TitusyfJle,  603. 
Kemp  v.  Westbrook,  473. 
Kemper  v.  Campbell,  146. 
Kempton,  In  re,  192. 
Kendall,  Ex  parte.  516. 

y.  Lawrence,  140. 


678 


CASES    CITED. 
[The  flgum  refer  to  pages.] 


Kendrick  v.  Eggleston,  487. 
Kennard  T.  George,  260,  26L 
Kennedy  T.  Green,  130,  268. 

T.  Johnson,  198. 

T.  Ned  row.  194. 

V.  Parke,  505. 

v.  Railroad  Co.,  650. 
Kennell  v.  Abbott,  242. 
Kenner  v.  Bitely,  5.~>9. 
Kenney  v.  Gillet,  75. 
Kensington  v.  White,  38. 
Kent  v.  Dunham,  396. 

v.  Gerhard,  487,  490. 

T.  Plummer,  143. 
Kenyon  v.  See,  497. 
Kerby  v.  Kerby,  326,  333. 
Kerlin  v.  Campbell,  400. 
Kerr  v.  Day,  140,  141,  144. 
Kerrich  v.  Bransby,  285. 
Ketcham  v.  Coal  Co.,  645. 
Ketchum  v.  Catlin,  268. 

v.  Duncan,  178. 

v.  Railroad  Co.,  443. 

v.  Spurlock,   277. 

v.  Stevens,   257. 

T.  Stout,  278. 
Key  T.  Griffin,  184. 
Keyea  v.  Cnrleton,  372. 

v.  Refining  Co.,  597. 

v.  Wood,  4o9. 
Keys  T.  Test,  159. 

T.  Williams,  478,  492. 
Keyser  v.  Angle,  161. 

v.  Mitchell,  377. 
Kidd  v.  Horry,  580. 
Kidder  T.  Kidder,  85. 
Kiefer  v.   Rogers,  173. 
Kiersted  T.  Ourry,  159. 
Kilbourn    T.    Sunderland,    85,    305, 

442. 

Kilgannon  T.  Jenkinson,  628. 
Killian  v.  Ebhinghnus,  32,  643,  644. 
Killmer  v.  Wurhner.  615. 
Kilmer  v.  Smith.  L'Tii.  1*X). 
Kilpatrick  v.  Henson,  334. 
Kilpin  v.  Kilpin,  410. 
Kimball  v.  Donald,  501. 

T.  Morton,  527. 

v.  Safford,  497. 
Klmberley  v.  Jennings,  313. 
Kimmel  v.  Lowe.  510. 
King  T.  Asa'n,  490. 

v.  Barnes.  518. 

T.  Cummings,   318. 

T.  Cushman.  414. 

T.  Denison,  401,  402. 

T.  French.  81. 

T.  King.  227.  229,  601,  648, 

T.  Portis,  147. 

T.  Ruokman.  79. 

T.  Smith    4C,7.  584. 

v.  Tnlbot,  422,  427,  428. 

T.  Wilson.  551. 
Kingsbnry  T.  Burnside,  363. 
Kinno  v.  W.«hh.  344. 
Kinnear  T.  Mat-key.  177. 
Kinney  T.  Killing's  Ex'r,  396. 


Kinsler  T.  Clarke,  583. 
Kinsley  T.  A~bbott,  60. 
Kinsman  v.  Kinsman,  153. 
Kirby  v.  Railroad  Co.,  3,  20. 

v.  Taylor,  328. 
Kirk  v.  Eddowes,  202,  203,  216. 

v.  Hamilton,  121. 

T.  Williams,  490. 
Kirkland  v.  Cox,  383. 
Kirkpatrick  v.  Atkinson,  52. 

v.  McDonald,  42. 

v.  Rogers,  484. 
Kirksey  v.  Fike,  533. 

v.  Keith,  52. 

Kirsch  v.  Tozier,  128,  129. 
Kirwan's  Trusts,  In  re,  545. 
Kisterbock's  Appeal,  340. 
Kitchel  v.  Board,  604. 
Kitchell  v.  Mudgett,  513. 

v.  Young,  4S2. 

Kirteridge  v.  Chapman,  161, 
Kittle  v.  Hall,  597. 
Klein  v.  McNamara,  455. 
Kline  v.  Kline,  322,  344. 
Knapp  v.  Bailey,  124.,  126,  128. 
Knatohbull  v.  Grueher.  560. 
Kneeland  v.  Luce,  651. 

v.  Machine  Works,  651. 

v.  Trust  Co.,   651. 
Knifong  v.  Hendricks,  253. 
Knight  v.  Bowyer,   140. 

v.  Glasscock,  275. 

v.  Knight,  3<J8. 

v.  Selby,  3<>7. 
Knobloch  v.  Mueller,  117. 
Knoll  v.  Harvey,  555. 
Knouff  v.  Thompson,  122. 
Knowlton  v.  Walker,  146. 
Knox  v.  Easton.  451. 

v.  Haug,  316. 

v.  Jones,  377. 

v.  Knox,  365. 

Knox  Co.  v.  Harsham,  572. 
Konitzky  v.  Meyer,  510. 
Konvalinka  v.  Schlegel,  192,  198. 
Kopper  v.  Dyer,  112. 
Kornegny  v.  Everett,  264,  275. 
Kountze  T.  Kennedy,  294. 
Kraemer  v.  Adelsberger,  456. 
Kraft  v.  Lohmnn,  443. 
Kramer  v.  Williamson,  299. 
Knimm  v.  Beach,  305. 
Kuhn  v.  Myers,  108. 
Kullman  v.  fJrponobnum,  336. 
Kunkel  v.  Wherry.  104,  107. 
Kunkle's  Appeal,  76. 
Kyger  v.  Kyloy.  4r»0. 
Kyle  v.  Bnrnett.  427. 

T.  Fehley,  621. 


Lahadie  v.  Hewitt.  609. 
I^nfn^snirnp  r.  Clinpnis.  38. 
I^ncey,  Kx   [mrtc.   .".'J.'I. 
Laclede  Bank  T.  Schuler,  501,  504. 


CASES    CITED. 
[Tha  figures  refer  to  pages.] 


67  9 


Lacombe  v.  Forstall,  33. 
Ladd  v.  Osborne,  586. 

v.  Pleasants,  277. 
Ladue  v.  Railroad  Co.,  458. 
Lafferty  v.  Bank,  483. 

v.  Railroad  Co.,  137. 
Lagow  v.  Badollet,  487. 
Lahr  v.  Railway  Co..  594. 
Laidlaw  v.  Organ,  301. 
Lake  v.  Brutton,  511. 

v.  Craddock,  407,  480. 

v.  Gibson,  59. 
Lamare  v.  Dixon,  549. 
Lamb  v.  Montague,  470,  512. 

v.  Pierce,  127. 
Lambert  v.  Newman,  129. 
Lamm  v.  Railway  Co.,  595. 
Laniont  v.  Stimson,  129. 
Lamoreux  v.  Huntley,  141. 
L'Amoureux  v.  Crosby,  355. 
Larnpert  v.  Haydel,  377. 
Lampet's  Case,  491. 
Lampruan  v.  Cochran,  109. 
Lancaster  v.  Roberts,  560. 
Lancaster  Co.  Nat.  Bank  v.  Moore, 

•  •  1  » . 

Lance  v.  Norman,  344. 
Lancy  v.  Randlett,  633. 
Landers  v.  Brant,  137. 
Landis  v.  Saxton,  415. 

v.  Scott,  436. 

Landon  v.  Townshend,  464. 
Lane  v.  Allen,  (39. 

v.  Dighton,  439. 

v.  Jackson,  157. 

v.  Logue,  161. 
Lanfair  v.  Lanfair,  453. 
Langdon  v.  Astor's  Ex'rs,  202,  215- 
217 

V.  Doud,'   171. 

v.  Sherwood,  89. 

v.  Templeton,  71. 
Lange  v.  Werk,  105,  109,  575. 
Langford  v.  Barnard,  84. 

v.  Gascoyne,  432. 
Langham  v.  Sandford,  401. 
Langley  v.  Fisher,  430. 
Lang's  Heirs  v.  Waring,  226. 
Langslow  v.  Langslow,  186. 
Lannifig  v.  Carpenter,  260,  262. 
Lansing  v.  Smith,  587. 
Lanzit  v.  Mfg.  Co..  313. 
Lapham  v.  Clapp,  483. 
Larabrie  v.  Brown,  641. 
Larkins  v.  Biddle,  260,  261,  620. 
Larmon  T.  Knight,  405. 
Larrabee  v.  Larrabee,  309. 
Latham  v.  Ininan,  163. 

v.  McLain,  233. 
Lathrop   v.   Bampton,   440. 

v.  Banbie,  443. 

v.  Smalley's  Ex'rs,  443. 
Lattin  v.  McCarty,  24. 
Lauer  v.  Dunn,  501. 
Laughlin   v.   Mitchell,  408. 
Laughton  v.  Harden,  341. 


Lau's  Estate,In  re,  411. 
Lavassar  v.  Washburne,  285. 
Lavender  v.  Abbott,  490. 
Lavenson  v.  Soap  Co.,  584. 
Law  v.  Grant,  301. 
Lawes  v.  Bennett,  231. 
Lawrence  v.  Blow,  500. 

v.  Clark,  336. 

v.  Dana,  598. 

v.  Fox,  462. 

v.  Lawrence,  251. 

v.  Rokes.  53. 

v.  Tucker,   160. 
Lawson  v.  Jordan,  49. 

v.  Wooden-Ware   Co.,   693. 
Lawton  v.  Estes,  74. 
Layton  v.  Ohaplin,  264. 
Lazard  v.  Wheeler,  494. 
Leach  v.  Duvall,  344. 

v.  Micklen,    277. 
Learned   v.   Hunt,   594. 
Leary  v.  Laflin,  105. 
Leas  v.  Garverich,  131. 
Leather  Cloth  Co.  v.  doth  Co.,  699. 

v.  Lorsont.  576. 
Leather  Manufacturers'  Nat.  Bank 

v.  Morgan,  173. 
Leavitt  v.  Palmer,  260. 

v.  Reynolds,  460. 

v.  Yates,  646. 

Lechmere  v.  Earl  of  Carlisle,  221, 
224. 

v.  Lechmere,  86,  243. 
Ledyard  v.  Butler,  117. 
Lee  v.   Burnham,  295. 

v.  Clary,  450. 

v.  Gregory.  ">16. 

v.  Kirby,  30«,  540. 

v.  Overstreet's   Adm'r,    110. 

v.  Pain,  211. 

T.  Pearce,  331. 

v.  Peckham,  82. 

v.  Percival,  263. 

v.  Wilson,  436. 
Leech  v.  Schweder,  575. 
Leech's  Estate.  In  re,  148. 
Lefevre  v.  Lefevre,  193. 

v.  Toole,  483. 
Lefforge  v.  West,  41. 
Legal  v.  Miller,  280. 
Le  Gendre  v.  Byrnes,  328. 
Legro  v.  Lord,  343. 
Lehigh  Val.   R.   Co.   v.  McFarlan, 
39. 

y.  Woodring,    360,    500. 
Lehigh   Zinc  &   Iron   Oo.   T.   Bam- 

ford,  290. 
Lehman  v.  Collins,  478. 

v.  Lewis,  4O7. 
Leib  v.  Stribling.  515. 
Leiby  v.  Wolfe.  148. 
Leicester  v.  Rose,  336. 
Leigh   v.  Armor,  2.">3. 

v.  Savidge's  Ex'rs.  483. 
Leighton  v.  Bowen,  384. 

v.  Orr,  320. 


680 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Leininger  v.   Railroad   Co.,  33. 
Leitch  T.  Wells,  161,  152,  154. 

v.  Wentworth,  603. 
Leiter  v.  Pike,  150. 
Lembeck  v.  Nye,  585,  586. 
Lemmond  v.  Peoples,  375. 
Lench  v.  Lench,  4O7,  415. 
Le  Neve  v.  Le  Neve,  115,  124,  i34. 
Lent  v.  Howard,  228,  229,  426. 
Leonard  v.   I'oole,  76,  312. 
Ijerow  v.  Wilmarth,  339. 
Lesley  v.  Johnson,   121. 
Leslie  v.  Baillie,  258. 

v.  Duke  of  Devonshire,  403. 

v.  Leslie,  3(>3. 

Lester  y.  Foxcroft,  552,  553. 
Le  Tester  v.  Auspach,  634. 
Letteratedt  v.  Broers,  442. 
Leopold  v.  Krause,  285. 
Levi   v.    Evans,   406. 
Levy  v.  Holberg,  141. 

v.  Levy,  350,  359,  395. 

v.  Mad-tin,    512. 

Levy's  Lessee  v.  McOartee,  369. 
Lewes  v.  Morgan,  56. 
Lewis,  lu  re,  4l'l. 

T.  Allenby,  389. 

v.  Ass'n,  407. 

v.  Christian.  575. 

v.  Docks,   32. 

r.  Darling,  91,  483. 

T.  Hillman,  325. 

T.  Hin man,  470. 

v.  Mortgage  Co.,  295. 

v.  Palmer,   511. 

y.  Smith,  192,  195. 
Lewis'   Appeal,   71. 
IJbby  v.   Hopkins,  522. 
Lichty  v.  McMartin,  466. 
Lick  r.  Ray,  627. 

Liggett   Spring  &  Axle   Co.'g  Ap- 
peal, 160. 
Light  v.  Light,  260. 

v.  Zeller,  411. 

Ligon's  Adin'rs  v.  Rogers,  168. 
Lindley  v.  O'Reilly,  93. 
Lindsay  v.  Cooper,  170. 

v.  Gibbs,  499. 

T.  Glass,    531. 

v.  Matthews,   454. 

v.  Pleasants,  240. 
Lindsley   v.   Ferguson,  304. 
Linn  v.  Gunn,  34. 

v.  McLean,   547. 
Lipp  v.  Laud  Syndicate,  456. 
Lippincott  v.  Ridgway,  846. 
TJssa  v.  Posey,  487. 
Lithauer  v.  Royle.  465. 
Littauer  v.  Houck,  132. 
Little  v.  Banks,  106,  106. 

v.  Chadwick,  413,  440. 

T.  Willford,   395. 
Littler  v.  Jayne,  604. 
Little    Rock    &   Ft.    S.    R,    Co.    T 

Wells,  253. 
Livermore  v.  McNair,  82. 


Liverpool.  London  &  Globe  Ins.  Co. 

v.  Ounie,  71. 

Livingston  v.  Livingston,  37,  214, 
251. 

v.  Reynolds,  583. 

v.  Story,  20. 

v.  Tompkins,  96,   110. 
Llanover  v.  Houifray,  637. 
Llewellyn   v.   Badeley,  633. 
Lloyd   v.   Banks,    125,   130. 

v.  Brantou,  312. 

v.  Galbraith,   516. 

v.  Loaring,   528. 

v.  Spillot,    399. 
Lobdell  v.  Hayes,  233. 
Locke  v.  Oald well,  470. 
Lockett  v.  itobiusou,  45. 
Loewer  v.  Harris,  303. 
Loffus  v.  Maw,  50. 
Loftus  v.  Maloney,  318. 
Logan  v.  Bull,  548. 

v.  Dixon,    508. 

v.  Williams,  146. 
London,  C.  &  D.  li.  Co.  T.  Railway 

Co.,  80. 

Loney  v.   Courtnay,  68. 
Long  v.  Fox,  440. 

v.  Hewitt,  252. 

v.  Long,  200. 

V.  Miller,    522. 

v.  Mulford,  331. 

v.  Towl,  109. 

Long  Dock  Co.  v.  Mallenr,  473. 
Longinette   v.    Shelton.    71. 
Longley  v.  Griggs,  509. 
Longtnate  v.  Ledger,  318. 
Long's  Appeal,  33. 
Longworth  v.  Hunt,  56. 
Loog  v.  Bean,  5<>5,  580. 
Loomis  v.  Loomis,  504.  506. 
Lard  v.  Bishop,  342. 

v.  Harte,  342. 

v.  Jeffkins,    309. 

v.  Lord,   192,  484. 
Lord  Bernard's  Case,  584. 
Lord  Brook  v.  Lord  Hartiord,  611. 
Lord  Chichester  v.  Coventry,  220. 
Lord    Mont  ford    v.   Lord   Cadogan, 

441. 
Lord    Montfort   v.    Lord    Cadogan, 

420. 
Loring  v.   Eliot,   401. 

v.  Palmer,  363. 
Losey  v.  Simpson.  135. 
Loucks  v.  Churchill,  193,  194. 
Loud  v.  Winchester,  422. 
Lough  v.  Michael,  117. 
Louisiana    Nat.    Bank    v.    Knapp, 

489. 
Louisville    Coffin    Co.    r.    Warren, 

591. 
Louisville  &  N.  R.  Co.  T.  Railroad 

Co.,  532. 
Love  v.  Mining  Co.,  85. 

v.  Taylor.    160. 
Lovegrove,  Ex  parte,  435. 


CASES    CITED. 
rrh«  figures  refer  to  pages.] 


681 


Lovelace  r.  Webb,  458. 
Lovell  v.  Cragin,  460. 

v.  Hicks,  300. 

T.  Minot,  428. 

T.  WaU,  264. 
Loveridge  v.  Cooper,  64. 
Low  v.  Holmes,  649, 

T.  Pratt,  152. 
Lowe  v.  Peers,  311. 
Lowell  v.  Daniels,  178. 

v.  Doe,  050. 

v.  Kaiiroad  Corp..  73. 
Lowe's  Settlement,  In  re,  503, 
Lowndes  v.  Cornford,  641. 
Lowry  v.  Dillman,  311. 

v.  Smith.  4S9. 

v.  Spear,   309. 
Lowson  v.  Copeland,  421. 
Loyd  v.  Read,  410. 
Lucas  v.  Crippen,  291. 

v.  Scott,  5G1. 
Luch's  'Appeal.  In  re,  479. 
Lucy's  Case,  265. 
Luddy's  Trustee  v.  Pearce,  327. 
Ludington  v.  Ford,  275. 
Ludlow's    Heirs    v.    Kidd's    Ex'rs, 

lOo. 

Luffberry's  Appeal,  239. 

Luke  v.  Hotel  Co.,  425. 

Lukins  v.  Aird,  340. 

Lumley  T.  Wagner,  567,  574,  576. 

Lumpkin  v.  Mills,  512. 

Lunquest  v.  Ten  Eyck,  480. 

Lutheran  Ohurch  v.  Maschop,  579. 

Lux  v.  Haggin,  173. 

Lydick  v.  Holland,  556. 

Lyford  T.  Thurston,  437. 

Lyman  T.  Gedney,  547. 

v.  Smith,  460. 
Lynch  v.  Gas  Co.,  96. 

v.  Railway   Co.,   40. 

v.  Sanders,  138. 

v.  Willard,  519. 
Lynde  v.  McGregor,  340. 

T.  Thompson,  102.  106,  107. 
Lyndonville  Nat.  Bank  v.  Ffetcher, 

171. 
Lyon  v.  Boiling,  512. 

v.  Home,  320,  332. 

v.  Lyon,  365. 

v.  Powell,  611,  613. 
Lysaght  v.  Edwards,  480. 

v.  Walker,  521. 
Lythe  v.  Beveridge,  414. 
Lyttle  r.  Cozad,  251. 

M 

McAfferty  T.  Conover's  Lessee,  167. 
McAlister  v.  Howell.  575. 
McArter  v.  Kelly,  579. 
MeBee,  Ex  parte,  232. 
McBeth  Y.  Trabue,  178. 
McBride  v.  Mclntyre,  420. 
Macbryde  v.  Weekes,  551. 
McCabe  T.  Mathews,  541. 


McCaffrey  T.  Woodin,  499. 
McCaffrey's  Appeal,  591. 
McCall  v.  Davis,  304. 
McCartee  v.  Society,  358. 
McCaull  v.  Braham,  577. 
McClanahan  v.   West,  32. 
McClellan  v.  McClellan.  363. 
McClintock  v.  Laing,  476. 
McClure  v.   Livermore,   175. 

v.  Otrich,  527,  557. 
McClure's  Appeal,  227,  229,  232. 
McClurg  v.  Phillips,  477. 
McClurg's  Appeal.  573,  575. 
McCollister  v.  Willey,  401. 
McGomb,  In  re,  228. 

v.  Spangler,  4tJ5. 
McConkey  v.  Smith,  602. 
McCord  v.  Iker,  589. 

v.  Ochiltree,  390. 

v.  Pike,  605. 
McCormick  v.  Garnett,  258. 

v.  Grogan,  89. 

T.  Horan,  594. 

T.  Malin,  322. 

T.  Rossi,  110. 

v.  Wheeler.  136. 
McCorn  v.  McCorn,  483. 
McCoy  v.  Grandy,  480. 

v.  Horwitz,  428. 

T.  Nelson,  596. 

v.  O'Donnell,  441. 
McCrea  v.  Purmort,  52. 
McCully  v.  McCnlly,  407. 
McCutchen  v.  Miller,  153. 
McDaniels  v.  Bank,  257. 
McDearman  v.  Hodnett,  2O3. 
Macdonald  v.  Macdonald,  off. 

v.  Neilson,  66. 

v.  O'Hara,  245. 

v.  Yungblnth,  557,  624. 
McDonogh's  Jfix'rs  v.  Murdoch,  348, 

356. 
MacDonongh  v.  Gaynor,  639. 

v.  O'Niel,  80. 
McElhenny's  Appeal,  435. 
McElrath  v.  Railroad  Co.,  93. 
McElroy  v.  McElroy,  401. 
MoElvey  v.  Lewis,  648. 
McElwain  v.  Willis,  338. 
McFadden  v.  Hefley,  235. 

v.  Worthington,   120. 
McFerran  v.  Taylor,  293. 
McGean  v.  Railway  Co.,  40. 
McGee  v.  Sweeney,  92. 
McGehee  v.  Polk,  639. 
McGillivray,  In  re,  443. 
McGinity  v.  MeGinity,  408. 
McGoon  v.  Shirk,  68. 
McGowan  v.  McGowan,  407. 
McGowin  v.  Remington,  528. 
MacGregor  v.  MacGregpr,  93. 
McGuire  v.  Devlin,  442. 

v.  Faber,  340. 

v.  Ramsey,  408. 
McHarry  v.  Irvin,  275. 
Machemer's  Estate,  In  re,  228. 
McHenry  T.  Jewett,  567. 


682 


CASES    CITED. 
[The  figures  refer  to  pages.] 


McHugh  T.  Smiley,  450. 
Mclntire  T.   Pryor,  442. 
Mclntyre  T.  Buell,  295. 
McKecknie  v.  Hoskins,  142, 

T.  Sterling,  249. 
McKee  v.  JuclJ,  494. 
McKenna  v.  George,  508. 

v.  Kirkwood,  505. 
Mackenzie,  Ex  parte,  505. 

v.  Coulson,  619. 

v.  Johnston,  519. 
McKim  v.  AulbacH,  432. 
McKinney  v.  Kuhn,  641. 
McKinnon  v.  Vollmar,  293,  284. 
Mackintosh   v.   Ogilvie,  91. 
McKinzie  v.  Perrill,  137. 
Macknet  v.  Macknet,  197,  282. 
McKnight  v.  Brady,  487. 

v.  Gordon,   120. 

T.  Taylor,   54. 
Mackreth    v.    Symmons,    484,    489, 

490. 

Mack's  Appeal,  387. 
McLanahan  v.  Reeside.  148. 
McLarren  v.  Beaver,  414. 

v.  Brewer,  87,  414. 
McLaughlin  v.  Railroad  Co.,  597. 
McLean  v.  Dow,  174. 
McLeod  v.  Evans,  438. 
Macloon  v.  Smith,  465. 
McMahon  v.   Russell,  450. 
McManns  v.  Cooke,  5o3. 
McMechan  v.  Griffing,  139,  140. 
McMillan  v.  Bissell,  454,  455. 

v.  Jewett,  454. 

v.  Paper  Co.,  261. 

v.  Richards.  450. 

v.  Rushing,  57. 
McMillon  v.  Mason,  32. 
McMullin's  Adm'r  v.  Sanders,  293. 
McMurray  v.  Rawson,  517. 

v.  Van  Gilder,  40. 
McNamara  v.  Dwyer,  639. 
McNary  v.  Southworth,  62. 
McNaughton  v.   McNaughton,  214. 

v.  Partridge.  334. 
MeNeil  v.  Bank,  174,  508. 

V.  Mnsree.  Fi.'W. 

v.  Miller.  513. 
McQueen  v.  McQueen.  198. 
McQuiddy  v.  Ware,  55,  68. 
McQuie   v.   Peay,   477. 
McShane  v.  Hazlehurst,  299. 
Mactier  v.  Osborn,  112. 
Macullar  v.  McKinley,  296,  304. 
McVay  v.  McVay,  362,  363. 
McVeigh    v.    Ritenonr,    338. 
McVey   v.    McQuality,   41<>. 
McWhinne  v.   Martin,  .r>f>12. 
McWhlrter  v.  Brainard,  46. 
McWilliams  v.  Webb,  504. 
Maddeford  v.  Austwick,  302. 
Madden  v.   Bnrnes.  490. 
Maddison  v.  Alderaon,  50,  552-554. 

v.  Chapman,  186. 
Maddoz  T.  Simmons,  308. 


Madigan  v.  Mead,  464. 

Magarity  v.  Shipman,  524. 

Magic  Ruffle  Co.  v.  Elm  City  Co., 

r>'.*7. 

Magistrates  of  Dundee  v.  Morris, 

389. 

Magniac  v.  Thomson,  49. 
Magnusson   v.   Williams,  99. 
Maguire  v.  Heraty,  64. 

v.  Vice,   24. 

Maher  v.  Lanfrom,  461. 
Mahoney  v.  Bostwick,  66. 
Major  v.  Bukley,  140. 
Makepiece  v.  Rogers,  519. 
Malcolm  v.  Allen,  99. 

v.  Andrews,  630. 
Maiden  v.  Menill,  158,  248,  282. 
Malins  v.  Brown,  557. 

v.  Freeman,  543. 
Mallabar  v.   Mallabar,   242. 
Mallalieu  v.  Wickham,  470. 
Maloney  v.  Finnegan,  627. 
Maltby  v.  Austin,  550. 
Mammoth  Vein  Consol.  Ooal  Oo.'s 

Appeal,  578. 
Mauby  v.  Bewicke,  317. 
Manchester    &    S.    R.    Co.,    In   re, 

235. 

Maoidelbaum  v.  McDonell,  377. 
Mandeville  v.  Welch,  360,  501. 
Manhattan  Mfg.  &  Fertilizing  Co. 

v.  Market  Co.,  573. 
Manhattan  Medicine  Co.  v.  Wood, 

75. 

Manice  v.  Manice,  377. 
Mann,  Appeal  of,  482. 

v.  Higgins,  544. 
Manners  v.  Mew,  122. 
Manning  v.  McClure,  160. 

v.  Sprague,  327. 

v.  Warren,  52. 
Mannix  v.  Purcell,  398. 
Mansell  v.  Mansell,  437. 
Manser  v.   Back,   ~><>1. 
Mansfield   v.   Lynch,   206. 

v.  Sherman,  279,  530. 
Manufacturers'    &    Traders'    Bank 

v.   Hazard,   173. 
Many  v.   Iron  Co.,  257. 
Maps  v.  Cooper,  90. 
Marbury  v.  Madison,  634. 
March   v.  Allabough,   107.   109. 
MarchalFs  Estate,  In  re,  227. 
Marcy   v.   Dtinlap,  74. 
Marden  v.  Babcock,  341. 

v.  Dorthy,  138. 
Mare  v.  Sandford.   336. 
Margraf  v.  Muir,  5-J2. 
Marine  Ins.  Co.  v.  Hodgson,  90. 
Markham  v.  Howell,  582. 
Marlow  v.  Marlow,  285. 
Marriner   v.   Dennison,   299,   304. 
Marr's  Appeal,  LIKt. 
Marsden's  F>st:itc.  In  re,  443. 
Marsh  v.  Fnlker.  'Jy 
T.  Marsh,  279. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


683 


Marshall  v.  Oollett,  158. 

v.  Mayor,  etc.,  96. 

v.  Stephens,    325. 

V.  Westrope,  263. 
Marston  v.  Williams,  146. 
Martien  v.  Norris,  193. 
Martin  v.  Funk,  372,  374,  381. 

T.  Graves,    626. 

v.  Hamlin,   260. 

v.  McCormick,   257. 

v.  Martin,  306. 

T.  Melville,  99. 

y.  Merritt,  561. 

V.  Morris,    1(>2. 

T.  Neblett,  150. 

y.  Paxson,  420. 

v.  Veeder,  495. 

v.  Walker,   338. 
Martinez  v.  Moll,  307. 
Martinson  v.  Olower,  468. 
Mai-vin  v.  Brooks,  518,  520. 
Marx  v.  Schwartz,  522. 
Mason  v.  Bauman,  302. 

T.  Black,  629. 

v.  Morley,   439. 

v.  Pierron,  508. 

Mason's  Ex'rs  v.  Trustees,  211. 
Massaker  v.  Massaker,  483. 
Massey  v.   Modawell,  229. 
Massie  T.   Watts,   89,   91-93,   361, 

534. 

Masson   v.   Bovet,   282. 
Master  v.  Miller,  492. 
Masterson  v.  Finnigan,  608. 
Mastin   v.   Grimes,   537. 

v.  Marlow,  309. 
Mateskey  v.  Feldman,  141. 
Mathews  v.  Insurance  Oo.,  49. 

v.  Mathews,   206. 
Mathias  v.  O'Neil,  53. 
Matlock  v.  Todd,  24. 
Mattes  v.  Frankel,  170,  173. 
Matthai  v.  Heather,  339. 
Matthews     v.     Crockett's    Adm'rs 
308. 

y.  McPherson,  24. 

v.   Studley,  228. 
Mattison  v.  Marks,  512. 
Maud   T.   Maud,   544. 
Maul  VN  Rider,  129. 
Maulfair's  Appeal,  334. 
Maund's  Case,  492. 
Maupin  v.  Emmons,  128. 
Maxwell  v.   Hyslop,   189. 

v.  Maxwell,  186,  189. 
Maxwell  Land  Grant  Case,  270. 
May  v.  Borel,   135. 

v.  Hanson,  61. 

v.  May,  443. 

v.  Thomson,  531. 
Maybee  v.  Moore,  557. 
Mayer  v.  Ass'n,  580. 

v.  McCreery,  535. 
Mayhew  v.   Crickett.  511. 
Mayo  v.  Merrick,  460. 


Mayor,  etc.,  of  City  of  Baltimore  r. 
Mfg.  Co.,  594. 

T.  Whittingtou,  128. 

v.  Williams,  125. 
Mayor,   etc.,  of  City  of  Griffin  v. 

City  Bank,  549. 
Mayor,  etc.,  of  CSty  of"  Macon  v. 

Dasher,  117. 

Mayor,  etc.,  of  Colchester  v.  Low- 
ten,  355. 
Mayor,  etc.,  of  Gloucester  y.  Wood, 

402. 
Mayor,   etc.,   of  London   y.  Levy, 

630. 
Mayor,  etc.,  of  York  v.  Pilkington, 

29. 

Mays  v.  Rose,  646. 
Meacham  v.  Steele,  470. 
Mead  v.  Bunn,  299. 

v.  Oamfield,  33. 

v.  Insurance  Co.,  275. 

y.  Merritt,  92,  361. 

v.  Mitchell,  612, 

v.  Wheeler,   106. 
Meader  v.  Norton,  56. 
Meads   v.   Bank,   159,   161. 
Meason  v.  Kaine,  532. 
Meath  v.  Phillips  Co.,  52. 
Mechanics'  Foundry  v.   Ityall,  586. 
Medwin  v.  Sandham,  281. 
Med worth  v.  Pope,  376. 
Meech   v.   Allen.   516. 
Meehan  v.  Williams,  139. 
Meek    v.    Perry,    328. 

v.  Spacher,   34. 
Mehlhop  v.  Pettibone,  341. 
Meigs  v.  Lister,  590. 
Mcigs'  Appeal.  110. 
Meir  v.  Bank,  83. 
Mellen  v.  Iron  Works,  35. 

v.  Mellen,  245. 
Mellish  v.   Robertson,  260. 
Mellon  v   Reed,  228,  233,  234. 
Melms  v.  Brewing  Co.,  54. 
Mercantile   Trust   Co.    v.    Railroad 

Co.,    650. 

Merchants'  Ins.  Co.  v.  Abbott,  160. 
Merchants'   Nat.   Bank   of  Kansas 

City  v.  Lovitt,  134. 
Meredith  v.  Heueage,  401. 
Merkel's  Estate,   In   re,  426. 
Merriam  v.  (Joodlett,  550,  551. 

v.  Goss,  468. 

v.  Railroad  Co.,  178. 
Merrifield  v.  Lombard.  594. 
Merrill  v.  Humphrey,  68,  603. 
Merriman  v.  Russell,  617. 
Merritt  v.  Merritt,  227. 
Merryman  v.  Euler.  327. 
Merryweather  v.  Nixan,  509. 
Merwin  v.  Austin,  510. 
Methodist     Episcopal      Church     of 

Newark  v.  Clark,  39o. 
Metler's  Adm'rs  v.  Metier,  601. 
Metropolitan  Bank  v.  Godfrey,  141, 
142,  160. 


684 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Metropolitan     Exhibition     Co.      v. 

Ward,  577. 

Metteer  v.  Wiley,  195. 
Mewburn's  Heirs  v.  Bass,  469. 
Meyer  v.  Johnston,  651. 

y.  Saul,  34. 
Mlall  v.  Brain,  194. 
Michoud  v.  Girod,  55,  323. 
Micklethwalt  v.  Micklethwait,  584. 
Middleton  v.  Greenwood,  531. 
Middletown   Bank   v.  Jerome,   506. 
Midtner  v.  Midmer's  Ex'rs,  406. 
Miles  v.  Estate  Co.,  264. 

v.  Iron  Co.,  539. 

v.  Langley,    139. 

v.  I*fi,  154. 

v.  Stevens,  268. 

v.  Wheeler,  415. 
Milhau  v.  Sharp,  005. 
Milkman  v.  Ordway,  40,  561* 
Millar  v.  Craig,  275. 
Miller  v.  Atkinson,  395, 

v.  Ball,  554. 

v.  Bradford,  147. 

r.  Cameron,  537. 

Y.  Cooch,  483. 

v.  Proctor,   423. 

T.  Railroad  Co.,  137. 

v.  Sea  mm  on.  284. 

T.  Sherry,  152.  155. 

T.  Springer,  187. 

T.  Thompson,  462. 

T.  Warmington,  617. 

v.  Whelan,  302. 

v.  Wilson.  405. 
Millican  v.  Millican,  332. 
Milligan's  Appeal,  472. 
Mills  v.  Farmer,  390. 

T.  Fowkes,  523. 

v.  Harris,  225.  228. 

T.  Lockwood,  277. 

v.  Newberry,  390. 

T.  Parkhurst.  385. 

v.  Seminary,    110. 

v.  Swearingen,  4.16. 
Millsaps  v.  Bond,  515. 
Mil  mine  v.  Bass,  514. 
Milner  v.  Atherton's  Ex'r,  217. 
Milroy  v.   Lord,  370,  372,  374. 
Miltenberger  v.  Railway  Co.,  651. 
Milwaukee  &  M.  R.  Co.  T.  Soutter, 

206.  513. 

Miner  v.  "Beekman,  68. 
Mineral  Water  Bottle  Exchange  & 

Trade  Soc.  v.  Booth,  313. 
Mingus  v.  Condit,  160. 
Minke  v.  Hopeman,  29. 
Minneapolis  &  St.  L.  R.  Go.  T.  Cox, 

r,44. 

Minnig's  Appeal,  586. 
Minor  v.  De  Vaughn,  594. 

v.  Rogers,  374. 

v.  Sharon,  303. 
Minot  v.  Baker,  396. 
Miuturn  v.  Soymour,  85. 

v.  Trust  Co.,  34. 
Mississippi  Mills  T.  Cohn,  3,  20. 


pi  &  M.  R,  Go.  r.  Crom- 
well, 74. 
Mitchell  v.  Bunch,  92,  638,  63d. 

T.  Burnham,  453. 

T.  Dawson,  161. 

T.  Denson,  252. 

T.  Hayne,  644. 

T.  Henley,  404. 

V.  Henry,  599. 

T.  Ladew,  460. 

T.  McDougall,  303,  304. 

v.  Mfg.  Co.,  518. 

r.  Mitchell,  607. 

Y.  Reed,  80,  414. 

T.  Reynolds,  312. 

T.  Shortt,  39. 

v.  Smith,  375. 

v.  Winslow,  497,  499. 
Mobile  Life  Ins.  Co.  v.  Randall,  161. 
Moeckly  v.  Gorton,  601. 
Moelle  v.  Sherwood,  TC2. 
Moffett  v.  Bates,  190. 
Moggridge  v.  Thackwell,  390,  393. 
Molony  v.  Rourke,  260. 
Monck  v.  Monck,  203,  217,  219. 
Moncrief  v.  Ross,  228-230,  232. 
Monmouth     Park     Ass'n    T.     Iron 

Works,  102.  107,  277. 
Monroe  v.  Fohl,  524. 
Montague  v.  Dudman,  29. 
Montefiore  T.  Guedalla,  216. 
Montgomery  v.  Dorion,  359. 

v.  Keppel,  129. 

v.  Pickering,  334. 

T.  U.  S.,  92. 
Moody  v.  Moody,  513. 
Mooers  v.  White,  55,  359. 
Moonan  v.  Orton,  495. 
Mooney  v.  Cooledge,  586. 

v.  Davis,  304. 

v.  Miller,  292. 
Moore  v.  Appleton,  509. 

v.  Baker,  185,  508. 

v.  Bank,   174. 

v.  Bennett,   149. 

v.  Blake,  541. 

T.  Bowman,  179. 

v.  Burrows,  79. 

v.  Butler,    184. 

v.  Cleghorn.  3fi7. 

T.  Crawford.  80. 

v.  Darby,  613. 

T.  Frowd,  434. 

T.  Harper,   185. 

T.  Hinnant,  339,  388. 

T.  Ingram,  488. 

T.  Isley,  508. 

T.  Jordan,  400. 

T.  Littel,  360. 

T.  Moore,  153,  253,  825,  411. 

T.  Platte  Co.,  109. 

T.  Robbins,  239. 

T.  Shurtleff,  472. 

Y.  Tate,  621. 

T.  Throop,  615. 

T.  Titman,  4681 

T.  Topliff,  511. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


685 


Moore  v.  Williams,  645. 

Moores  v.  Townshend,  33,  627,  628. 

Moorman  v.  Collier,  260. 

Moran  v.  Sturges,  569. 

More  v.  Massini,  583. 

Morehead  v.  Eades,  299. 

Morehouse  v.  Ballou,  60. 

Morenhout  T.  Higuera,  612. 

Moreton  v.  Harrison,  487. 

Morgan  v.  Bell,  258,  264,  561. 

v.  Binges,    292. 

v.  Higgins,  326. 

T.  Joy,  320. 

V.  Marsack,   641. 

v.  Minett,  331. 

V.  Perhamus,   576. 

T.  Railroad  Co.,  524. 

v.  Schemerhorn,  67. 
Morgan's  Adm'r  v.  Brast,  560. 
Moriarty  v.  Ashworth,  584. 
Morice  v.  Bishpp  of  Durham,  389, 

403. 

Morley  v.  Rennoldson,  312. 
Mormon  Church  Y.  U.  S.,  393. 
Morony  v.  O'Dea,  56. 
Morphett  v.  Jones,  555. 
Morrell  T.  Wootten,  502, 
Merrill  v.  Noyes,  646. 

v.  Water-Power  Co.,  593. 
Morris  v.  Mfg.  Co.,  574. 

v.  Nixon,    8?. 

v.  Stern,   621. 
Morrison  v.  Collier,  624. 

v.  Herrick,  140,  554,  555. 

T.  Kelly,  128. 

T.  Kinstra,  439. 

T.  Rogers,  311. 
Morritt,  In  re,  473. 
Morrow  v.  Brenizer,  242. 
Morse  v.  Goafrey,  159. 

v.  Rathburn,  107. 
Mortimer  v.  Capper,  274. 
Mortlock  v.  Buller,  287,  529,  560. 
Morville  v.  Fowle,  387,  424. 
Moseley  v.  Moseley,  75. 
Moses  v.  Cochrane,  547. 

v.  Johnson,  584. 

v.  Katzenberger,  298. 

T.  Mayor,    etc.,    29. 
Mosier's  Appeal,  513* 
Mosley  v.  Ward,  184. 
Moss  v.  Adams,  523. 

T.  Atkinson,    143. 

v.  Culver,  556. 

v.  Hanson,  547. 
Mossier  v.  Jacob,  TL 
Mott  v.  Clark,  168. 

T.  Mott,  109,  316. 
Moulson  v.   Moulson.   21ft. 
Mouncc  v.  Byars,  478. 
Mt.  Holly,  L.  &  M.  Tumpik*  Oo. 

v.  Ferree,  644. 
Movan  v.  Hays,  362. 
Mowday  v.  Moore,  589. 
Mowry   v.   Wood,   478. 
Moxon  v.  Bright,  518,  519. 
Moyer  T.  Hiimian,  79,  137. 


Muckleston  v.   Brown,   375. 
Mucklow  v.  Fuller,  431. 
Mueller  v.  Engeln,  150. 

v.  Kleine,  105. 

Muir  v.  Schenck,  64,  116,  505. 
Mullanphy    Sav.    Bank    T.    Schott, 

132. 

Mullen  T.  Wilson,  339. 
Muller  v.  Dows,  92,  93. 

v.  Rhuinan,  622. 
Mullhall  v.  Quinn,  500. 
Mulliken  v.  Graham,  131. 
Mulry  v.  Norton,  585,  586. 
Mumford  v.  Trust  Co.,  68. 
Munch  T.  Cockerell,  427. 
Munds  v.  Cassidey,  85. 
Mundy  v.  Jolliffe,  555. 
Munn  v.  Burges,  430. 
Munro  v.  Merchant,  359. 
Munroe  v.   Eastman,   128. 

v.  Pritchett,  293. 
Munson  v.  Railroad  Co.,  323,  829, 

415. 

Murdoch  v.  Finney,  504. 
Murdock   v.   Railroad   Co.,   37. 
Murphy  v.  Rooney,  280. 

v.  Smith,  572. 

v.  Weber,  523. 
Murray  v.  Ballou,  151-153,  162. 

v.  Blatchford,    151. 

v.  Drake,  557. 

T.  Gouverneur,  480. 

T.  Jones,  177. 

v.  Lylburn,    151,   154, 

v.  Murray,  344. 

v.  Parker,  279. 

v.  Riley,  467. 

v.  Sells,   177. 

v.  Walker,  450. 
Murrell  v.  Goodyear,  549. 
Musham  v.  Musham,  416. 
Musprat  v.  Gordon,  496. 
Musselman    v.    Kent,    76. 

v.  Marquis,  580. 
Mussey  v.  Sandborn,  611. 
Mutlow   v.  Bigg,   246. 
Mutual  Ace.   Ass'n   of  the  North- 
west v.  Jacobs,  437. 
Mutual    Ben.     Life    Ins.     Oo.     T. 

Rowand,   146. 
Mutual  Life  Ins.  Co.  T.  Bailey.  229. 

v.  Bigler,  584. 

v.  Dake,    146,    147. 
Myer  v.  Hart,  107. 
Myers  v.  Estell,  645, 

v.  Jackson,   405. 

v.  Ross,    134. 

v.  State,   61. 
Myrick  T.  Selden,  153. 

N 

Nachtreib  T.  Harmony  Settlement, 

332. 

Nagle  v.  Baylor,  538. 
Nagle's  Appeal,  241. 


686 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Nairn  T.  Prowse,  490. 
Naltner  T.  Dolan,  438. 
Nash  v.  Burchard,  519. 

v.  Hodgson,  523,  524. 

v.  Simpson,  612. 

National  Hank  of  America  v.  Bank- 
ing Oo.,  501. 
National  Bank  of  Commerce  of  Ta- 

coma,  Wash.,  T.  Wade,  31. 
National    Bank    of    Newburgh    T. 

Bigler,  522. 
National  Docks  R.  Oo.  v.  Railroad, 

578. 

National  Ins.  Co.  v.  Pingrey,  644. 
National  Park  Bank  of  New  York 

v.  Goddard,  39. 
National    Sav.    Bank    v.    Oreswell, 

472. 

National    Security   Bank   v.   Gush- 
man,  134. 
Navassa  Guano  Oo.  v.  Richardson, 

451. 

Navigation  Oo.  v.  Pritchard,  249. 
Naylor  v.  Winch,  264. 
Neal  T.  Gregory,  122, 
Neale  T.  Neale,  265,  552,  560. 
Neall  T.  Hill,  651. 
Nease  v.  Insurance  Co.,  35. 
Neblett  v.  MacFarland,  282. 
Neckley  v.  Thomas,  301. 
Needles  v.  Martin,  390. 

v.  Needles,   309. 
Neel  v.  Clay,  485. 
Neeson   v.    Clarkson,   480. 
Neff's  Appeal,  421. 
Negley  v.  Lindsay,  304. 
Neiliert  v.  Baghurst,  553. 
Ntiill   v.   Shamburg,   301, 
Neilley,  In  re,  54. 
Neilson  v.  Williams,  508. 
Neininger  v.  State.  620t 
Nell  v.  Dayton,  176. 
Nellis  v.  Clark.  75. 
Nelson  v.  Betts,  34, 

v.  Brown.  192. 

v.  Oarlson,  305. 

T.  Davis,  260. 

v.  Stocker,  75. 

v.  Wade.   141. 
Kelson's  Adm'r  v.  Kownslar*B  Ex'r, 

53. 

Nelson's  Will.  In  re,  320. 
Nesbit  v.  Lockman,  331. 
Ncsbitt  v.  Cavender,  454. 
Neslin  v.  Wells,  64. 
Nethery  v.  Payne,  583. 
Neueudorff  v.  Insurance  Co.,  826. 
Neves  v.   Scott.  20. 
Nevin  v.  Drysdale.  216. 
Kevins  v.  McKee,  572. 
Nevius  v.  Dunlap.  275,  279. 
New  v.  Niroll,  4.%. 

T.  Wright,  601,  648. 
Newcomb  v.  Gibson.  f>08. 
Newell  v.  Randall.  301. 
Newhall  v.  Kastens,  642. 

T.  Pierce,  142. 


New    Hope    &    D.    Bridge    Oo.    T. 

Bank.  134. 

Newkirk   v.   Newkirk,  457. 
Newman,  In  re,  326. 

v.  Chapman,  152. 

v.  Sylvester,  296. 

v.  WillKts,  388. 

v.  Wolfson,  104. 
New  Orleans  Nat.  Banking  Ass'n  T. 

Adams,  477. 

Newport  Waterworks  v.  Sisson,  225. 
Newsom  v.  Thornton,  482. 
Newton  v.  Bronson,  92,  424. 

v.  Newton,  64,  65,  115. 

v.  Tolles.  270. 

New  Vienna  Bank  v.  Johnson,  477. 
New  York  Dry-Dock  Co.  v.  Trust 

Co.,  569. 

New  York  Ins.  Co.  v.  Roulet,  42. 
New  York  Juvenile  Guardian  Soc. 

v.  Roosevelt,  580. 
New  York   Mut.   Life   Ins.    Co.   v. 

Armstrong,  70. 
New  York  Rubber  Co.  v.  Rothery. 

121,  170. 
New  York  &  H.  R,  Co.  T.  Haws, 

254. 

Nibert  v.  Baghurst,  556. 
Nicholls  v.  Judson,  206. 

v.  Maynard,    101. 
Nichols  v.  Allen.  390.  403. 

T.  Eaton,  343,  377. 

v.  McCarthy,  324. 

T.  Pinner,  3O4. 

v.  Reynolds,  454. 
Nicholson  v.  Hooper,  121. 
Nicodemus  v.  Nicodemus,  588. 
Nicoll  v.  Mumford,  385. 
Nidever  v.  Ayers,  162. 
Niell  v.  Morley,  355. 
Nigpeler  v.  Maurin,  457. 
Niles,  In  re,  431.  433. 

v.  Davis,  553. 
Niver  v.  Rossman.  109. 
Nixon's  Heirs  v.  Carco's  Helri,  82. 
Noble  v.  Googins.  277,  278. 

v.  Walker.  67. 
Nobles  v.  Bates.  104. 

v.  Hopg,  427. 

Noble's  Adm'r  v.  Moses,  328,  329. 
Noel  v.  Kinney,  179. 
Noel's  Ex'r  v.  Gill.  624. 
Noetling  v.  Wright,  292. 
Nokos  v.  Gibbon.  112. 
Nonotuck  Silk  Co.  v.  Flanders,  413, 

437. 

Noonan  v.  Lee.  21. 
Norcum  v.  D'Oench.  252. 
Norcutt  v.  Dodd,  342. 
Nordenfelt  v.  Ammunition  Oo.,  812. 
Norfolk   &   N.    B.   Hosiery   Co.    T. 

Arnold,  53. 
Norfolk  &  W.  R.  Co.  T.  Cable  Co., 

635. 
Norris  v.  Hapgin,  305. 

T.  Hero,  439. 

T.  Larabee,  260. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


687 


Norrish  v.  Marshall,  504. 

North    Baltimore    Bldg.    Ass'n    v. 

Caldwell,  323. 
Northern    Counties    of    Eng.    Fire 

Ins.  Co.  v.  Whipp,  122. 
Northern   Indiana   R,   Co.   v.   Rail- 
road Co.,  96. 
Northern  Pac.  R.  Oo.  v.  Amacker, 

39. 
Northern     Transportation     Oo.     T. 

City  of  Chicago,  592. 
North  Nat.  Bank  v.  Hamlin,  512. 
Northrop's  Ex'rs  v.  Graves,  266. 
Norton  v.  Coons,  59,  507. 

v.  Mascall,  533. 
Norway  v.  Rowe,  649. 
Nottley  v.  Palmer,  191. 
Nounnan  v.  Land  Co.,  290. 
Noyes  v.  Anderson,  99,  112, 
v.  Clark,  99. 
v.  Hall,  137,  140,  143. 
T.  Marsh,  528,  533. 
T.  Rich,  467. 
Nye  T.  Patterson,  ©16. 


Oakes  v.  Turquand,  304,  306. 
Oakley  v.  President,  etc.,  652. 
Ober  v.  Gallagher,  39. 
O'Brien  v.  Elliot,  192. 
Occleston  v.  Fullalove,  3761 
O'Connor  T.  Bank,  501. 

v.  Gifford,  421. 

v.  Meehan,  360. 

T.  Rempt,  319. 

v.  Spaight,  520. 

v.  Ward,  343. 
Odell,  Ex  parte,  84. 

v.  Montross,  469. 
Odle  v.  Odle,  33. 
Odlin  v.  Gove,  173. 
Odom  v.  Riddick,  163. 
O'Donnell  v.  Rosenberg,  105. 
O'Driscoll  v.  Koger,  196. 
Ogden  v.  Thornton,  489. 
Ogilvie  v.  Currie,  284. 
Ogle  v.  Ogle,  489. 
Oglesby  Coal  Oo.  v.  Pasco,  179. 
Ogsbury  v.  Ogsbury,  554. 
O'Hara,  In  re,  443. 

v.  Carpenter,  314. 
O'Hara's  Will,  In  re,  417,  418. 
Ohio  Life  Ins.  &  Trust  Oo.  v.  Led- 

yard,  160. 
Oil  Creek  R.  Ob.  v.  Railroad  Co., 

110. 

Olcott  v.  Bynum,  406. 
Oldaker  v.  Hunt,  594. 
Old  South  Society  v.  Crocker,  387, 
Oliphant  v.  Leversidge,  410. 
Oliver  v.  Piatt,  87,  440. 
v.  Pray,  39. 
v.  Sanborn,  128. 
Olliffe  v.  Wells,  418. 


Olmstead  v.  Abbott,  544. 

v.  Brush,  482. 
"Hson  v.  Erickson,  619. 
Orcutt  v.  Gould,  437. 
3rd  v.  McKee,  39. 
Oregonian    R.    Co.    v.    Navigation 

Co.,  531. 
D'Reilly  v.  Alderson,  443. 

v.  Bard,  508. 

Drmerod  v.  Dearman,  314. 
Ormiston  v.  Olcott,  431,  433. 
Orne  v.  Coal  Co.,  542. 
D'Rourke  v.  O'Connor,  141. 
Orr  v.  Newton,  422. 

v.  Zimmerman,  83. 
Orrell  v.  Orrell,  189. 
Orrick  v.  Durham,  490. 
3rton  v.  Smith,  628. 
Dsborn  v.  Heyer,  652. 

v.  Osborn,  404,  410. 

v.  Phelps,  279,  624. 
Osborne  v.  Cabell,  463. 

v.  Endicott,  408. 

v.  Kimball,  553. 

v.  Moss,  75. 

v.  Railroad  Co.,  38. 

v.  Williams,  74. 
Oscanyan  v.  Arms  Co.,  314. 
Osgood  v.  Eaton,  406. 

v.  Franklin,  308. 
Ostrander  v.  Weber,  39. 
Otis  v.  Sill,  121. 
Ottawa  Northern  Plank-Road  Co. 

v.  Murray,  99. 
Ould  v.  Hospital,  387. 
Overmire  v.  Haworth,  35. 
Overton  v.  Blum,  253. 

v.  Vanister,  75. 
Owen  v.  Dixon,  75. 

v.  Ford,  579. 

v.  Homan,  647. 
Owens  v.  Claytor,  482. 

v.  Crossett,  585. 

v.  Owens,  70. 
Ownes  v.  Ownes,  375. 
Oxenden  v.  Lord  Compton,  238. 
Oxford  v.  Provand,  544. 
Oxford  Universities  v.  Richardson, 
596. 


Packard  v.  Packard,  611. 

v.  Putnam,  363. 

v.  Railroad  Co.,  367. 
Packer  v.  Foy,  129. 
Padbury  v.  Clark,  195. 
Paddock  v.  Strobridge,  301. 
Paddon  v.  Richardson,  419. 
Padfield  v.  Pierce,  178. 
Padgett  v.  Lawrence,  161. 
Padwick  v.  Stanley,  519. 
Page  v.  Estes.  67. 

•v.  Higgins,  620. 

v.  Home,  332. 

v.  Kendrick,  340l 

T.  Martin,  527. 


688 


CASES    CITED. 
[The  flgurei  refer  to  pages.] 


Page  v.  Waring,  129,  152. 
Page's  Estate,  In  re,  228. 
Page's  Ex'rs  v.  Holeman,  489. 
Paget  v.  Grenfell,  219. 
Paige  T.  Banks,  596. 
Pain  v.  Pain,  88. 
Paine  v.  Ooombs,  555. 

T.  Meller,  79. 

v.  Parsons,  202,  217. 

v.  Upton,  277,  278. 
Paisley's  Appeal,  367,  370. 
Palmer  v.  Bates,  142. 

v.  Ford,  83. 

T.  Gardiner,  570. 

v.  Harris,  75. 

T.  Hayes,  569. 

v.  Williams,  158,  150,  161,  421. 
Palmeter  v.  Carey,  461. 
Pankhurst  v.  Howell,  217,  218. 
Panton  v.  Holland.  592. 
Papillon  v.  Voice,  381. 
Parfitt  v.  Chacbre,  98,  108. 
Paris  v.  Lewis.  163. 
Parish  v.  Murphree,  339. 
Park   Bros.   &   Co.   v.  Blodgett  & 

Clapp  Co.,  263,  620. 
Parker  v.  Conner,  131. 

v.  Ooop,  407. 

v.  Crittenden,  177. 

T.  Davis,  316. 

v.  Dee,  39. 

T.  Garrison,  575. 

v.  Hill,  146. 

T.  Johnson,  435. 

T.  Kuhn,  56. 

v.  Nickerson,  329. 

T.  Parker,  619,  640. 

v.  Sanborn,  512. 

v.  Sears,  596. 
Parkhurst  v.  Hosford,  130. 

v.  Kinsman.  596. 

v.  Lowten,  634. 
Parklst  v.  Alexander,  146. 
Parks  v.  Jackson,  155. 
Parmelee  v.  Cameron,  307,  308. 
Parineter  v.  Bourne,  45. 
Parmlee   v.   Adolph.   294. 
Parnell  v.  Kingston,  401. 
Parr  v.  Village  of  Greenbosh,  107. 
ParshalPs  Appeal,  429. 
Parsons  v.  Bedford,  20. 

v.  Briddock.  512. 

T.  Hoyt,  155. 

v.  Winslow,  312. 
Partridge  v.  Shopard,  383. 

v.  Smith.  160. 
Paschall  v.  Hinderer,  55. 
Parley  y.  Freeman.  289. 
Passingham  v.  Sherborn,  414. 
Patehin  v.  Pierce,  473. 
Patman  T.  Harland,  140. 
Patten  v.  Bond.  437. 

v.  Moore,  140. 
Patterson  v.  Bloomer,  279. 

T.  Caldwell.  497. 

r.  Lennig,  430. 

T.  LytJe,  176. 


Patterson  T.  McCamant,  38. 

v.   Patterson,  207. 
Pattison  v.  Skillman,  528. 
Patton  v.  Campbell,  251. 
Paul  v.  Railroad  Co.,  131. 
Paulison  v.  Van  Iderstine,  271. 
Pawson  v.  Brown,  403. 
Payne  v.  Bensley.  160. 

v.  Hook,  3,  20. 

T.  Nowell,  489. 

v.  Railroad  Co.,  567. 

v.  Wilson,  78,  476,  477. 
Peabody  v.  Fenton,  131. 

v.  Tarbell,  408. 
Peachy  v.  Duke  of  Somerset,  83,  96, 

98,  100,  112. 
Peacock  v.  Evans,  309. 
Peak  v.  Ellicott,  438. 
Peake  v.  Highfield,  625. 
Pearce  v.  Jackson,  161. 

v.  Wilson,  454. 
Pearl  v.  Deacon.  511.  512. 

v.  McDowell,  355. 
Pearse  v.  Green,  436. 
Pearsoll  v.  Chapin.  333. 
Pearson  v.  Allen,  588. 

v.  Cardon,  643. 

v.  Lane,  243. 

v.  Williams'  Adm'r,  105. 
Pease  v.  Eagan,  511. 

v.  Landauer.  502. 
Peck  v.  Bi'lknap,  (»05. 

v.  Culberson.  488. 

v.  Elder,  T.90. 

v.  Ellis,  f>09. 

v.  Jeuress.  474. 

T.  Peck,  557. 

Peokhnm  v.  Newton,  396,  427,  428. 
Pedesclanx  v.  Legare.  487. 
Peek  v.  Mallams,  147. 

v.  Peek.  119,  l.r>9.  557. 
Peers  v.  Ijimbert,  5(10. 
Peery  v.  Hall,  173. 
Peine  v.  Weber,  105.  107,  108. 
Peirsoll  v.  Elliott,  625. 
Pell  v.  McElroy.  142. 

v.  Mercer,  396. 
Pemberton  v.  Onkes,  523. 
Pembroke  v.  Thorpe,  556. 
Pence  v.  Armstrong,  621,  623. 
Penfield  v.  Dunbar.  161. 
Peuhallow  v.  Kimball,  108. 
Penn  v.  Baltimore,  92. 

T.  Gnggenheimer,  185-187,  108, 
200. 

v.  Lord  Baltimore,  534. 
Pennock's  Estate,  In  re,  370. 
Pennsylvania  v.  Bridge  Co.,  8,  20, 

588. 
Pennsylvania    Coal    Oo.    r.    Canal 

Co.,  567. 
Pennsylvania  Co.  for  Insurance  on 

Lives  v.  Stokes,  185. 
v.  Trust  Co.,  050. 
Pennsylvania  R.  Co.  v.  Com.,  86. 
Penny  v.  Martin,  271. 
Penny  backer  T.  Laidley,  300,  308. 


CASES    CITED. 


Penrose  y.  Leeds,  541. 
Penzel  v.  Brookmire,  460. 
People  v.  Board,  290,  604. 

v.  Canal  Board.  568. 

T.  Cogswell,  388. 

T.  Court,  99. 

v.  Dwyer,  604. 

y.  E.  Remington  &  Sons,  514. 

v.  Fallen,  310. 

T.  Faulkner,  423. 

v.  Ferry  Co.,  588. 

v.  Houghtaling,  42. 

v.  New  York  Co.,  524. 

v.  Powers,  395. 

T.  Railroad  Co.,  107. 

v.  Tioga  Common  Pleas,  494. 

v.  Vanderbilt,  588. 
People's  Bank  of  City  of  New  York 

v.  Bogart,  300,  301. 
People's  Gas  Co.  v.  Tyner,  29. 
Percival  v.  Harger,  299. 
Perkins  v.  Ede,  560. 

v.  Hall,  513. 

v.  Lane,"  53. 

T.  Lyman,  102,  107. 

y.  Partridge,  290,  292. 
Perrott  v.  Shearer,  512. 
Perry  v.  Bozeman,  522. 

T.  Hale,  516. 

v.  Holl,  135. 

v.  Pratt,  617. 
Persch  v.  Quiggle,  414. 
Peters  v.  Bain,  439. 

v.  Canfield,  170. 

T.  Cartier,  162. 

v.  Florence,  258. 

v.  Mortimer,  73. 

v.  Tunell,  487,  488. 
Peterson's  Appeal,  227. 
Petrain  v.  Kiernan,  137. 
Petree  v.  Bell,  153. 
Petry  v.  Ambrosher,  159. 
Peugh  v.  Davis,  453—455. 
Peynado's    Devisees    v.    Peynado's 

Ex'r,  396. 

Pfeifer  v.  Snyder,  285. 
Pfister  v.  Wade,  640,  645. 
Phalen  v.  Clark,  34.  305. 
Phelan  v.  Brady,  137,  140. 
Phelps,  Ex  parte,  443. 
Philadelphia  Trust  Co.   T.  Guillon, 

377. 

Philadelphia,   W.   &  B.   E.  Co.  T. 
Dubois,  176. 

v.  Woelpper,  457. 
Philbrick  v.  Shaw,  511. 
Philbrook  v.  Delano.  483. 
Phillips  v.  Clark,  170. 

v.  Edwards,  556. 

T.  Ferguson,  241. 

T.  Gorham,  24. 

y.  Mayor,  etc.,  29. 

v.  Moses,  523. 

T.  Phillips.    64,    116,    157,   158, 
370,  519. 

T.  Prevost,  633. 

T.  Pullen.  308,  572. 
EATON.EQ. — 44 


689 


Phillips  v.  Stauch,  74. 

v.  Stevens,  249. 
Phillipson  v.  Gibbon,  131. 

v.  Kerry,  330. 
Philpot  v.  Penn,  408. 
Philpott  v.  Jones,  523. 
Phoenix  Mut.  Life  Ins.  Oo.  T.  Bail- 
ey, 284. 

Pickard  v.  Sears,  165. 
Pickering  v.  Day,  522,  523. 

v.  Pickering,  264. 

v.  Railway  Co.,  503. 
Pickersgill  v.  Rodger,  185-187. 
Picket  v.  Morris,  253. 
Pickett  v.  Bank,  177. 

v.  Ferguson.  91. 

v.  Green,  576. 
Pierce  v.  Fuller,  104, 

v.  Pierce,  649. 

v.  Plumb,  533. 

v.  Society,  520. 
Pike  v.  Fay,  290,  291. 
Pillsworth  v.  Hopton,  583. 
Pirn  v.  Downing,  431. 
Pinchin  v.  Railway  Co.,  568- 
Pinnell  v.  Hallet,  222. 
Pinneo  v.  Goodsneed,  468. 
Piper  v.  Hoard,  45. 

v.  Moulton,  388. 

v.  Piper,  586. 
Piscataqua  Fire  &  Marine  Ins.  Co. 

v.  Hill,  284. 

Pit  v.  Cholmondeley,  521. 
Pitcher  v.  Barrows,  145. 

v.  Hennessey,  260,  261. 

v.  Rawlins,   62. 

v.  Road  Co.,  257. 
Pittsburgh  &  C.  R.  Co.  y.  Barker, 

161. 

Pittsburg  Min.  Co.  v.  Spooner,  430. 
Place  v.  City  of  Providence,  605. 

v.  Conklin,  811. 

v.  Hay  ward,  327. 
Planters'    Bank    of    Tennessee    y. 

Homberger,  327. 
Planters'    &    Merchants'    Bank    y. 

Walker,  337. 
Platt  v.  Woodruff,  90. 
Platto  v.  Deuster,  570. 
Pleasonton's  Appeal.  423. 
Plumb  v.  Fluitt,  125. 
Plumer  v.  Robertson,  142. 
Plummer  v.  Keppler.  74. 
Plunkett  v.  Lewis,  208. 
Pocock  v.  Attorney  General,  389. 
Poindexter  v.  Burwell,  92,  93. 
Pole  v.  Somers.  209. 
Pollard  v.  Clayton.  541. 

v.  Greenvil,  252. 
Polley  v.  Seymour,  228. 
Pomeroy  v.  Benton,  302. 
Pond  v.  Sheean,  554,  5561 
Pool  v.  Docker,  40. 
Poole  v.  Middleton.  528. 
Poolcy  v.  Ruy,  2.">3. 
Poor  v.  Hazleton,  309. 

y.  Woodburn,  160. 


690 


CASES    CITED. 
LTh*  ngur»s  refer  to  pages.] 


Pop*  v.  Brandon,  356. 

T.  Cole,  60. 

v.  Farnsworth,  441, 
Popp  v.  Swanke,  553. 
Poppleln  v.  Foley,  627. 
Portarlington  v.  Soulby,  91. 
Porter  v.  Patterson,  521. 

T.  Spencer,  92,  639. 

r.  Water  Co.,  32. 

T.  Williams,  652. 

v.  Woodruff.  302. 
Portland  v.  Topham,  345. 
Portland    &   H.   Steamboat  Co.  T. 

Locke,  437. 
Port  of  Mobile  v.  Railroad  Co.,  586, 

605. 
Post  v.  Kimberly,  518. 

v.  Railroad  Co.,  531,  633,  634, 
Potter  v.  Hollister,  361. 

T.  Jacobs,  556. 

v.  McDowell,  340. 

v.  Whitney,  596. 
Potter's  Appeal,  293. 
Poushkeepsie  Gas  Co.  r.  Qai  Oo., 

585. 

Powel  v.  Cleaver,  203. 
Powell  v.  Adams,  299. 

T.  Borroughs,  104,  105. 

T.  Campbell,  154. 

T.  Cheshire,  586. 

T.  Evans,  421. 

v.  Furniture  Co.,  589. 

v.  Glover,  328. 

v.  Howell,  338. 

v.  Jones,  476. 

T.  Maguire,  33. 

T.  Powell,  248,  323. 

v.  Smith,  260. 

v.  Thomas,  68. 
Powell  D.  S.  C.  Co.  v.  Railwaj  Co., 

532. 

Power  v.  Oassidy,  228. 
Power's  Appeal,  309. 
Powis  v.  Mayuard,  99. 
Powys  T.  Mansfield,  214,  215,  217. 
Poyer  T.  Village  of  Des  Plaine*,  29, 

Pratt  v.  Douglas,  192,  190. 

v.  Eby,  546. 

T.  Mining  Co.,  55. 

T.  Montpgriffo,  577. 

T.  Rndford,  512. 

T.  Slndden.  400. 

T.  Stiles,  473. 

T.  Talliaferro,  227. 
Pray  v.  Clark,  544. 
Prey's  Appeals,  428. 
Prentice  v.  .Tanssen.  227,  245,  246. 
Presoott  v.  Norris,  73. 
President,  etc.,  of  Concord  Bank  r, 

Bellis,  178. 
Preston  v.  Jones,  192. 

T.  Mann.  172. 

T.  Preston,  52,  544, 

T.  Smith. 

v.  Tuliliin,   153. 
Preteca  v.  Land  Grant   Co.,  38. 


Provost  v.  Gratz,  55,  56. 
Prewit  v.  Wilson.  34L 
Price  v.  Dyer,  280. 

y.  Gover,  454. 

T.  Junkin,  117. 

T.  Macaulay,  298. 

v.  McDonald,  131,  150. 
Price's   Adm'r   v.   Thompson,    823, 

430 

Price's  Ex'x  v.  Price's  Ex'rs.  649. 
Prince  Albert  v.  Strange,  598. 
Prince  Mfg.  Co.  v.  Paint  Co..  75. 
Pringle  v.  Dunn,  133,  135,  146,  149, 
163. 

T.  Pringle,  76. 
Printing   &   Numerical   Registering 

Co.  v.  Sampson,  499. 
Printup  v.  Fort,  290. 
Proby  v.  Landor,  281. 
Proctor  v.  Bank,  91. 

T.  McCord,  29C. 

v.  Machine  Co.,  172. 
Protestant  Episcopal  Education  Soc. 
v.    Churchman's    Representatives, 
386,  395. 

Prouty  v.  Tilden,  138. 
Providence  Bank  v.  Wilkinson,  641. 
Provost  v.  Rebman,  280. 
Prudential  Assur.  Co.  v.  Knott,  580. 
Pruner  v.  Pendleton,  588. 
Pryor  v.  Foster,  334. 
Puckette  v.  Judge,  568. 
Pugh  v.  Smith,  184. 

v.  Wheeler,  593. 
Pulezer  v.  Kucharzyk,  32. 
Pulsford  v.  Richards,  295. 
Pulteney  v.  Earl  of  Darlington,  243, 
246. 

v.  Shelton,  584. 
Pundmann  v.  Schoenich,  437. 
Purcell  v.  McNamara,  57. 

v.  Miner,  554,  555. 
Purple  v.  Railroad  Co.,  495. 
Purvines  v.  Harrison,  620. 
Pusey  v.  Desbrouvrie,  196. 

v.  Pusey,  527. 
Putnam  v.  Ritchie,  480. 

v.  Tyler,  121. 

Pye,  Ex  parte,  212-215,  374. 
Pyle's  Appeal,  245. 
Pym  v.  Blackburn,  249. 
v.  Bowreman,  470. 
v.  Lockyer,  212,  215,  216L 
Pyrke  T.  Waddingham,  546. 


Quarrel!  T.  Beckford,  436. 

Quartz  Hill  Consol.  Gold  Min.  Co. 

v.  Beall,  580. 
Quayle  v.  Guild.  54. 
Quincy  v.  Attorney  General,  888. 
Quinn  v.  Brittnin,  4<>8. 

v.  Light  Corp.,  588. 

v.  Moore,  494. 

T.  Roath,  74,  279. 


CASES    CITED. 
[The  figures  refer  to  paces.] 


691 


Raasch  r.  Raasch,  74. 

Race  v.  Groves,  121. 

Radcliffe's  Ex'rs  v.  Mayor,  etc.,  692. 

Radich  v.  Hutchins,  319. 

Ragland  v.  Green,  33. 

Ragsdale  v.  Mays,  546. 

v.  Parrish,  193. 
Rakestraw  v.  Lanier,  312. 
Raley  v.  Williams,  170. 
Ralston  v.  Turpin,  328,  331. 
Ramsay  v.  Gheen,  539. 
Ramsdell  v.  Edgarton.  33ft. 
Ramsey  T.  HanJon,  229. 
Ramsey's  Appeal,  514. 
Ramshire  v.  Bolton,  284. 
Rancliffe  v.  Parkyns,  186. 
Randall  v.  Silverthorn,  131. 
Randolph's   Ex'r   v.    Quidnlck   Co., 

540. 

Ranelaugh  v.  Hayes,  510. 
Rankin  v.  Coar,  141. 
Ranney  v.  Hardy,  138. 
Rapalee  v.  Stewart,  172. 
Rapier  v.  Paper  Co.,  457. 
Raritan     Water     Power     Oo.     T. 

Veghte,  131. 
Ratto  v.  Levy,  253. 
Rau  v.  Von  Zedlitz,  320. 
Rawlins  v.  Wickham,  293,  294. 
Rawlinson  v.  Clarke,  109. 
Ray  v.  Powers,  508. 

v.  Simons,  340. 
Read  v.  Brookman,  250. 

v.  Gaillard,  476. 

T.  Huff,  410. 

v.  Read,  639. 

y.  Truelove,  420. 

v.  Williams,  239. 
Reade  v.  Livingston,  339. 
Ready  v.  Noakes,  308. 
Real  Del  Monte  Co.  v.  Mining  Co., 

586. 

Reay  v.  Butler,  299. 
Recknagle  v.  Schmaltz,  555 
Red  fern  v.  Bryning,  277. 
Redfield  v.  Gleason,  562. 

v.  Parks,  81. 

Redgrave  v.  Hurd,  298,  299. 
Redin  v.  Branhan,  506. 
Reed  v.  Boardman,  522. 

v.  Breeden,  551. 

v.  Dickerman,  192. 

v.  Gannon,  131. 

v.  Holliday,  598. 

T.  Marble,  422. 

T.  Norris,  509,  510. 

T.  Reed,  555. 

v.  Root,  620. 

v.  Sidener,  290. 

T.  Whitney,  233. 
Kees  v.  City  of  Watertown,  2,  46. 

v.  Smith,  35. 
Reese's  Appeal,  528. 
Reeve  T.  Whitmore,  500. 


Reeves  v.  Ayers.137. 

T.  doming,  291. 

v.  Hayes,  459. 

T.  Morgan,  41. 

T.  Stipp,  98. 
Regan   Vapor-Engine   Oo.   r.   Qa»- 

Engine  Co.,  499. 

Regent's  Canal  Co.  v.  Ware,  236. 
Reichert  v.  Geers,  590. 
Reid  v.  Fitch,  87. 

v.  Reid,  188. 

v.  Shergold,  252. 
Reid's  Adm'r  v.  Blackstone,  866. 
Reiff  v.  Strite,  229. 
Reilley  v.  Roberts,  34. 
Remington  v.  Higgins,  261. 

v.  Irwin,  111. 
Renals  v.  Cowlishaw,  574. 
Rendell  v.  Scott,  291. 
Rendlesham  v.  Woodford,  187. 
Rensselaer  &  S.  R.  Co.  v.  Miller, 

435. 

Renton  v.  Monnier,  504. 
Repass  v.  Moore,  513. 
Revalk  v.  Kraemer,  570. 
Revell  v.  Hussey,  79. 
Reynell  v.  Sprye,  72,  294,  287,  803, 

404. 
Reynolds,  Ex  parte,  443, 

v.  Carlisle,  137. 

v.  Oidge,  435. 

v.  Horine,  572. 

v.  Ingersoll,  133. 

v.  Kinsbury,  146. 

v.  Robinson,  202. 

v.  Ruckman,  128. 

v.  Sumner,  55. 

v.  Torin,  194. 
Rhead  v.  Hounson,  343. 
Rheel  v.  Hicks,  257. 
Rhodes  v.  Bate,  331. 

v.  Dnnbar,  590. 

v.  Neal,  314. 

v.  Outcalt,  128. 
Rice  v.  Hale,  639. 

v.  Kelset,  619. 

v.  Rice,  62,  63,  115,  11«. 

v.  Sanders,  461. 

T.  Society,  211. 

v.  Southgate,  510. 

v.  Stone,  494,  495. 
Rich  v.  Black,  415. 

v.  Bray,  612. 
Richards  v.  Barrett,  650. 

v.  Columbia,  523. 

T.  Delbridge,  372,  374. 

v.  Dower,  585. 

v.  Humphreys,    203,   213,    216, 
218. 

v.  Lumber  Co.,  487. 

v.  Mackall,  54. 

v.  Railroad  Co.,  172. 

v.  Seal,  431. 
Richardson  v.  Eveland,  202. 

v.  Greese,  205,  206. 

v.  Gregory,  52,  54. 


692 


CASES    CITED. 
[Th«  figure*  refer  to  paces.] 


Richardson  v.  Jenkins,  440. 

v.  Levi,  162. 

T.  Meaus,  24. 

T.  Peacock,  573. 

T.  Richardson,  373. 

v.  Walton,  305. 
Richmond  T.  Gray,  547,  560. 
Richmond   Mfg.    Co.    T.  De  Laine 

Co.,  594. 

Richter  v.  Poppenhausen,  00. 
Richtmeyer  v.  Remsen,  494. 
Rickle  v.  Dow,  39. 
Rico  v.  Gualtier,  639. 
Riddlesburg  Coal  &  Iron  Co.,  Ap- 
peal of,  499. 
Rider  v.  Johnson,  505. 
Ridgway  v.  Ridgway,  541. 
Ridings  T.  Johnson,  20. 
Riegel  v.  Insurance  Co.,  266,  269. 
Rigby  v.  Oonnol,  531. 
Rjgden  v.  Vallier,  407. 
Riggs  v.  Palmer,  70. 
Ring  v.  Ashworth,  279. 
Ringgold  v.  Bryan,  487. 
Ringo  T.  Binns,  325. 
Riopelle  v.  Doellner,  633. 
Ripon  T.  Hobart,  579. 
Rippe  v.  Stogdill,  519. 
Ripple  T.  Ripple,  131. 
Risley  v.  Bank,  502. 

v.  Parker,  403. 
Rison  v.  Moon,  39. 
Ritter  v.  Phillips,  462. 
Rizer  T.  Perry,  305. 
Roach  v.  Karr,  135. 
Roadley  v.  Dixon,  194. 
Roane  v.  Baker,  120. 
Robbins  v.  Butler,  430. 

v.  Davis,  t;:::>. 

v.  Moore,  137,  157. 

V.  Potter,  172,  173. 

v.  Webb,  313. 
Robb's  Appeal.  87. 
Robert  v.  Corning.  230. 
Roberts  v.  Homing,  133. 

v.  IJoyd.  503,  373. 

v.  Moseley,  420. 

v.  Remy,  410. 

v.  Richards,  148. 

v.  Smith,   194. 

v.  Tunstall,  57. 
Roberts'  Appeal,  In  re,  363. 
Roberts'    Heirs    v.    Lovejoy,    559, 

560. 
Robertson  v.  Deatherage,  507. 

v.  Skelton,  79. 

v.  Stephens,  198. 

v.  Wheeler,  141. 
Robinson,  In  re,  419. 

v.  Buck,  198. 

v.  Campbell,  20. 

v.  Oathcart,  64. 

T.  Ghess«ldine,  34. 

T.  Fair.  600. 

T.  Loomis,  83.  99. 

T.  Macdonnell,  497. 

T.  Pett,  322,  434. 


Robinson  v.  Robinson,  246,  441. 

v.  Smith,  160. 

v.  Taylor,  400. 

T.  Wheeler,  253. 

v.  Williams,  457,  489. 
Roca  v.  Byrne,  437. 
Roch  v.  Callen,  210. 
Rochester  v.  Levering,  326. 
Rochester  Distilling  Co.  v.  Rasey, 

49-J. 
Rockafellow  v.  Baker,  288. 

v.  Newcomb,  322. 
Rockwell  v.  Bank,  462. 

v.  Hobby,  478. 
Roddy  v.  Brick,  457. 
Rodgers  v.  Rodgers,  583. 
Roemer  v.  Conlon,  276. 
Roe's  Ex'x  v.  Roe,  184. 
Rogers  v.  Atkinson,  280. 

v.  Challis,  533. 

v.  Elliott,  588. 

T.  French,  219. 

V.  Higgins,  299. 

T.  Hosack's  Ex'rs,  501. 

T.  Hussey,   139. 

v.  Ingham,  260,  266. 

v.  Jonos,  139,  144,  184. 

v.  Rathbun,  67. 

T.  Rogers,  401.  402. 

v.  Saunders,  279,  537. 

v.  Soutten,  215. 

v.  Taintor,  599. 

v.  Tyler,  406. 

v.  Wolfe,  554. 
Rogers     Locomotive     &     Machine 

Works  v.  Railway  Co.,  565. 
Rohan  v.  Hanson,  523. 
Rohn  v.  Harris,  613. 
Rolfe  v.  Gregory,  305,  412,  437. 
Roll  v.  Rea,  149. 
Rolland  v.  Hart,  135. 
Romaine    v.    Hendrickson'i    Ex'rs, 

322,  323. 
Rook's  Case,  51. 
Root  v.  Railway  Co.,  595. 
Ropes  v.  Upton.  108. 
Roquet  v.  Eldridire.  214. 
Rosoboom  v.  Whittaker,  68. 
Roseman  v.  Miller,  159,  162. 
Rosewell  v.  Bennett,  203,  217. 
Ross  v.  Brusie,  454. 

v.  Butler,  592. 

v.  Caywood,  128. 

v.  Oonway,  331,  332. 

v.  Crane,  r>^. 

v.  Parks,  537. 

v.  Purse,  544. 

v.  Railway  Co.,  528,  531. 

v.  Wbrthlngton,  150. 
Rossiter  v.  Miller,  535. 
Roszell  v.  Roszell,  27(5. 
Bothholi  v.  Schwartz,  533. 
Rothschild's  Adm'r  v.  Kohn,  152. 
Rottenburgh  v.  Fowl.  318. 
Rouse  v.  Flower*.  589. 
Rousillon  v.  Rousillon,  576. 
Row  v.  Dawson,  500. 


CASES     CITED. 


693 


[The  figures  refer  to  pages.] 

Rowan  v.  Bank,  64. 
Rowe  v.  Ream,  141. 
Rowell  v.  Chase,  293. 
Rowley  v.  Bigelow,  117. 

v.  Towsley,  441,  513. 
Roxborough  v.  Messick,  158, 
Royce  v.  Watrous,  179. 
Ruckman  v.  Alwood,  454. 

v.  Decker,  114. 
Rudy's  Estate,  In  re,  403. 
Ruff  v.  Jarrett,  293. 
Ruff's  Appeal,  541. 
Runyan  v.  Mersereau,  459, 
Runyon  v.  Bank,  646. 
Rushworth  v.  Moore.  512, 
Russell,  In  re,  296,  326. 

v.  Allen,  390. 

y.  Bank,  59. 

v.  Dickeschied,  633. 

v.  Dickson,  210. 

v.  Jackson,  414. 

v.  Kirkbride,  152. 

T.  Minnesota  Outfit,  24. 

v.  Russell,  478. 

T.  Southard,  84,  454. 

v.  Sweezey,  133. 
Russell's  Appeal,  145,  330. 
Ruth  v.  Ford,  160. 
Rutland  Marble  Co.  T.  Ripley,  74, 

536,  601. 

Ru  Ton  v.  Everitt,  312. 
Rutter  v.  MacLean,  187. 
Rutz  v.  Kehn,  178. 
Ryall  v.  Ryall,  407. 
Ryan  v.  Ashton,  327. 

v.  Doyle,  437. 
Ryckman  v.  Gillis,  592. 
Ryder  v.  Loomis,  406. 
Rynearson  v.  Turner,  508. 
Ryno  v.  Darby,  279. 


Sable  v.  Maloney,  622. 

Sackville-West  v.  Holmesdale,  880. 

Safford  v.  Wade's  Ex'rs,  160. 

Sage  v.. Railroad  Co.,  646. 

Sailly  v.  Elmore,  42. 

St.  Albans  v.  Beauclerk,  209. 

St.  Helen's  Smelting  Co.  v.  Tipping, 

590. 
St.  Louis  Nat.  Stock  Yards  v.  Ferry 

Co.,  167. 
St.  Louis  &  S.   F.  Ry.  Co.  y.  Ap- 

person,  603. 
Sale  v.  Moore,  359. 

v.  Thornberry,  370. 
Salisbury  T.  Clarke,  400. 

v.  Mores,  153. 

v.  Slade,  228. 

Salisbury  Mills  r.  Townsend,  642. 
Salt  v.  Chattaway,  242. 

v.  Pym,  277. 
Saltmarsh  v.  Beene,  538. 
Sample  v.  Barnes,  76. 
Sanborn  v.  Woodman,  111. 


Sanders  v.  Cassady,  459. 

v.  Fruit  Co.,  535. 

T.  Logan,  597. 

T.  Metcalf,  45. 

v.  Pope,  96. 

Sanderson  v.  Price,  451. 
Sandford  v.  Handy,  292. 

v.  McLean,  513. 

v.  Weeder,  408. 
Sandoe's  Appeal,  In  re,  184. 
Sands  v.  Sands,  261,  262. 
Sanfley  v.  Jackson,  331. 
Sanford  v.  Jackson,  192. 
Sangster  v.  Love,  459. 
Sappington  v.  Oeschli   119. 
Sargeant  v.  Cornish,  357. 

v.  Rowsey,  471. 

v.  Sargeant.  506. 
Sargent  v.  Apparatus  Co.,  161. 
Sarth  v.  Blanfrey,  252. 
Satterfield  v.  Malone,  129. 

v.  Rowan.  594. 
Saull  v.  Browne.  29. 
Saunders  v.  Smith,  578, 

v.  Wiel.  634. 
Savage  v.  Berry,  39. 

v.  Brocksopp,  537. 

v.  Burnham,  230,  366. 

v.  Foster,  75. 

v.  Jackson,  297. 

v.  Savage,  611. 
Savannah   Nat.    Bank   r.  Haskins, 

251. 
Sawyer,  In  re,  29. 

v.  Almand,   117. 

v.  Hovey,  623. 
Saxon  v.  Wood,  314. 
Saxon  Life  Assur.  Soc.,  In  re,  282. 
Sayre  v.  Hughes,  411. 

v.  Weil,  374. 
Scanlan  v.  Cobb.  317. 

v.  Wright,  359. 
Scarborough  v.  Watkins,  332. 
Schafer  v.  Reilly,  506. 
Schaible  v.  Ardner,  341. 
Schaidt  v.  Blaul.  173. 
Schaps  v.  Lehner,  317. 
Schaungut's  Adm'r  v.  Udell,  340. 
Scheerer  v.  Cuddy.  139,  144. 
Scheetz's  Appeal,  37. 
Schenck  v.  Ellingwood,  252. 

v.  Hart,  75. 

Schermerhorn  v.  Niblo,  547. 
Schiffer  v.  Diets,  334. 
Schlaefer  v.  Corson,  87. 
Schlecht's  Appeal.  649. 
Schleissmann  v.  Kallenbere,  512. 
Schlessinger  v.  Mallard,  401. 
Schloss  v.  Hewlett,  495. 
Schlnter  v.  Harvey,  160. 
Schmittler  v.  Simon,  501. 
Schmucker's  Estate  v.  Reel,  402. 
Schneider  v.  Williams.  599,  600. 
Schnell  v.  City  of  Chicago,  179. 
Schnitzel's  Appeal,  509. 
Schoellhamer  v.  Rometsch,  320. 
Schofield  v.  Heap,  216. 


694 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Schofield  v.  Torapkjns,  108. 
Schofield  Gear  &  Pulley  Uo.  y.  Scho- 
field, 293. 
School  Dist.  No.  1  of  Grand  Haven 

v.  Weston,  640,  642. 
Schooley  v.  Romain,  99. 
Schramm  T.  O'Connor,  291, 
Schreiber  v.  Carey,  650. 
Schriber  v.  Leclair,  456. 
Schroeder  v.  Gurney,  120. 

T.  Loeber,  34, 

T.  Walsh,  341. 

Schroeppel  v.  Hopper,  79.        « 
Schuey  v.  Scbaeffer,  552. 
Schumaker  v.  Mather,  292,  298. 
Schutt  v.  Large,  163. 
Schuyler  y.  Curtis,  581. 
Schuyler's  Steam  Towboat  Co.,  In 

re,  569. 

Schwenck  T.  Wyckoff,  360. 
Scofield  v.  Tompkins,  107. 
Scotland  Co.  v.  Hill,  163. 
Scott  v.  Bank,  374. 

T.  Freeland,  323. 

T.  Gallagher,  139. 

T.  Guernsey,  611,  615. 

T.  Lumber  C9-,  14o,  323. 

y.  Magloughlin,   505. 

T.  Porcher,  502. 

v.  Rayment,  532. 

T.  Rogers,  154, 

T.  Stanford.  598. 

v.  Tyler,  312. 

Scudamore  v.  Scudamore,  224,  233. 
Seabrook  v.  Brady,  153. 
Seaman  v.  Cook,  414. 

v.  Woods,  187. 
Searle  v.  Sawyer,  467. 
Sears  v.  Chapman.  390. 

v.  Putnam,  377. 

v.  Starl.ird,  508. 
Seavey  v.  Potter,  334. 
Sebastian  v.  Johnson,  424. 
Second    Religious    Soc.    of   Boxford 

T.  Harriman,  388. 
Secor  v.  Railroad  Co.,  640. 
Seed  v.  Brn.lford.  208. 
Seeley  v.  Bacon,  273,  274. 

v.  Baldwin,  33. 

T.  Fisher.  579. 

T.  Jago,  244,  246. 
Segur  T.  Tingley,  271. 
SeiberHng  v.  Tipton,  149. 
Seixas  v.  Gonsoulin.  512. 
Selby  y.  Stanley,  487. 
Seligmann  v.  Le  Boutillier,  533. 
Sellers  T.  Parvis  &   Willianm  Co., 

689. 

Sdlors  T.  Board,  590. 
Selz  T.  Unna.  509. 
Seton  T.  Blade,  462,  549,  550. 
Sewell  T.   Price's  Adm'r,  455. 
Sexton  T.  Wheaton,  114. 
Seymour  v.  Delanrey.  74. 

T.  Delnnoy,  308.  540. 

T.  McKinstry,  150. 


Seymour  v.  Ricketts,  612. 

v.  Wilson,  341. 
Shackelton  T.  Sebree,  318. 
Shade  v.  Oeviston,  291. 
Shaftoe  T.  Shaftoe,  639. 
Shahan  y.  Swan,  555. 
Shakeshaft,  Ex  parte,  441. 
Shakespeare  v.  Alba,  557. 

v.  Slarkham,  318,  543. 
Shallenberger  v.  Ashworth,  245. 
Shand  y.  Du  Buisson,  501. 
Shank  v.  Simpson,  75. 
Shannon  v.  Bruner,  495. 
Shapley  v.  Abbott,  165. 
Shardlow  v.  Cotterell,  545. 
Sharon  v.  Terry.  625. 
Sharp  v.  Taylor,  72. 
Shartel's  Appeal,  265,  441. 
Shattuck  T.  Bascom,  449. 

v.  Cassidy,  92. 
Shaw  v.  Beers,  611. 

v.  Coster,  644. 

y.  Fisher,  528. 

y.  Foster,  486. 

v.  Shaw,  408. 

v.  Spencer,  403. 
Shea  v.  Shea,  329. 
Shearer  v.  Shearer,  228. 
Sheets  v.  Bray,  542. 
Sheets'  Estate,  In  re,  363. 
Sheldon  v.  Rockwell,  37. 
Shellenberger  v.  Ransom,  70. 
Shelley's  Case,  380,  381. 
Shelton  v.  Johnson,  155. 
Shepardson  v.  Stevens,  128. 
Shepherd  v.  Burkhalter,  146. 

v.  Guernsey,  58. 

v.  McEvers,  358. 

v.  May,  461. 

Sheppard  v.  Nixon,  626,  62& 
Sheridan  v.  McMullen,  583. 
Sherman  v.  Elder,  494. 

v.  Lewis,  186.  187. 

v.  Wright,  74. 
Sherry  v.  Sansberry,  328. 
Sherwood  v.  Walker,  270. 
Shields  v.  Atkins.  430. 

v.  Lozear,  451. 
Shiell  v.  McNitt,  106,  107. 
Shillaber  v.  Robinson,  465. 
Shipley  v.  Bunn,  355. 

v.  Fox,  167. 
Shipman  v.  Furniss,  40,  322. 

y.  Lord,  80. 

Shirras  v.  Craig,  160,  457,  458. 
Shoemaker  v.  Arrester  Co.,  580. 
Short  v.  Battle.  l.V.t. 


.  ,      . 

Shotwell  v.  Hnrrison,  128. 

v.  Mott,  301. 

Shotwell's  Adm'x  v.  Smith,  633. 
Shrove   v.    Bivn-ton.    106.   109,   110. 
Shriver  v.  Sliriv«>r,  546,  547. 
Shryock  v.  Waggoner,  358. 
Shupe  v.  Biirtlctt.  411. 
Shurtleff  y.  Kile,  422. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


695 


Shute  T.  Hamilton,  109. 

v.  Taylor,  108,  110. 
Shuttleworth  v.  Greaves,  187. 
Sibert  v.  McAvoy,  262. 
Sibley  Y.  Baker,  515. 
Sichel  Y.  Mosenthal,  533. 
Sickles  Y.  Mfg.  Co.,  596. 
Sigmon  v.  Hawn,  184. 
Sill  v.  Sill,  193. 
Silliman  v.  Eing,  260. 
Silva  v.  Garcia,  586. 

v.  Rankin,  585. 
Sim  v.  Field,  466. 
Simar  v.  Oanaday,  292. 
Simnionds,  Ex  parte,  266. 
Simmons,  In  re,  236. 

v.  Oliver,  427. 

v.  Palmer,  274. 

v.  Saul,  285. 
Simmons  Creek  Coal  Co.  v.  Doran, 

149,  623. 

Simon  T.  Wildt,  530. 
Simons  v.  Mining  Co.,  329. 
Simpson  v.  Lord  Howden,  625. 

v.  Mundee,  488. 

v.  Pearson,  177. 
Sims  v.  Sims,  202,  217. 
Singer  v.  Schilling,  295. 
Singer  Mfg.   Co.   v.   Machine  Ob., 

580. 

Singer    Sewing-Mach.    Oo.    Y.    Em- 
broidery Co.,  574. 
Skegg's  Settlement,  In  re,  238. 
Skellenger  v.  Skellenger,  401. 
Skerrett  v.  Society,  159. 
Skillman  v.  Teeple,  264. 
Skinner  v.  Dayton,  96,  100. 
Skinner's  Oo.  v.  Society,  646. 
Skip  v.  Harwood,  646. 
Skottowe  v.  Williams,  179. 
Skrine  v.  Jackson,  45. 
Slattery  v.  Schwannecke,  133. 
Slaughter  v.  Gerson,  297,  298. 

v.  Nash,  33. 
Slee  v.  Bloom,  521. 
Sleeper  v.  Davis,  160. 
Slemmer's  Appeal,  596. 
Slevin,  In  re,  393. 
Slim  y,  Oroucher,  284. 
Slingsby  v.  Boulton,  644. 
Sloan  v.  Baird,  92. 

v.  Campbell,  489. 

Y.  Sloan,  627. 
Sloane  v.  Cadogan,  373. 
Slocum  v.  Slocum,  239. 
Slocumb  v.  Railroad  Co.,  121. 
Sloman  v.  Walter,  83,  96,  100. 
Sloo  v.  Law,  430. 
Sloper  v.  Fish,  546. 
Smail  v.  Sanders,  600. 
Small  v.  Electro-Matrix  Co.,  601. 
Smallcombe's  Case,  288. 
Smalley  v.  Greene,  313,  576. 
Smethurst  v.  Hastings,  422. 
Smiley  v.  Wright,  233. 
Smillie  v.  Swinn.  343. 
Smith.  In  re,  324. 


Smith  T.  Ashton,  252. 

T.  Ayer,  416. 

v.  Bayright,  238. 

v.  Bone,  193. 

T.  Bruning,  73. 

T.  Burgess,  140. 

T.  Oansler,  539. 

T.  Chadwick,  289. 

v.  Oity  of  Oconomowoc,  CSS. 

V.  Claxton,  240. 

y.  Clay,  53,  65,  541. 

V.  Combs,  442. 

v.  Com'rs,  134. 

T.  Crosby,  456. 

T.  Dimton,  133. 

v.  Dunn,  614. 

v.  East  India  Co.,  634,  635. 

v.  Fellows,  483. 

V.  Grim,  75. 

v.  Hitchcock,  260. 

T.  Howells,  363. 

v.  Hughes,  270. 

v.  Huntoon,  308. 

v.  Jackson's  Heirs,  141. 

V.  Kammerer,  76. 

v.  Kane,  67. 

V.  Kay,  299,  322,  331. 

V.  Kelley,  459. 

v.  Lawrence,  551. 

T.  Lehman,  164. 

v.  Loe  wen  stein,  231. 

v.  Loyd,  523. 

V.  McCluskey,  249. 

v.  Machine  Co.,  35. 

v.  Railroad  Co..  533. 

v.  Richards,  293. 

T.  Rumsey,  512. 

v.  Smith,  78.  104.  192,  205,  344. 
612,  614,  649. 

T.  Tanner,  265. 

v.  Vodges,  339. 

v.  Walser,  437. 

v.  Wildman,  367. 

v.  Willard,  411. 
Smithers  v.  Fitch,  585. 
Smith's  Appeal.  In  re,  133. 
Smithsonian  Inst.  v.  Meech,  410. 
Smoot  v.  Rea,  74. 
Smyley  v.  Reese,  332. 
Smyth  v.  Banking  Co.,  32. 

v.  Burns,  428. 

v.  Griffin,  625. 

Snell   T.   Insurance   Co.,   261,    619, 
621. 

T.  Mitchell,  74. 

v.  Tuttle,  213. 
Snodgrass  v.  Andrews,  338. 

v.  Butler,  644. 
Snook  v.  Suetzer.  91. 
Snow  v.  Paine,  340. 
Snowdon  v.  Dales.  377. 
Snyder  v.  Oabell,  590. 

T.  Hopkins.  583. 

v.  Ives,  274. 

v.  Partridge,   132. 
V.  Robinson,  461. 

T.  Spauldiug,  111. 


696 


CASES    CITED. 
[Th«  figures  refer  to  pages.] 


Soberanes  v.  Soberanes,  331,  332. 
Sohier  v.  Burr.  387. 
T.  Church,  365,  391. 
T.  Eldredge,  481. 
Soltau  v.  De  Held,  587,  588,  590. 
Somers  v.  Overhulser,  407. 

v.  Pumphrey,  3.3"). 
Somes  v.  Brewer,  1(«. 
Soper  v.  Guernsey,  453. 
Sopwith  v.  Maughan,  199. 
Sorrell  v.  Carpenter,  151,  152* 
Soule  v.  Shotwell,  1GO. 
Southard  v.  Benner,  338. 
v.  Curley,  <;L'::. 
v.  Sutton,  177. 

Southern  California  R.  Co.  v.  Ruth- 
erford, 45. 
Southern  Development  Co.  T.  Silva, 

290,  291,  295. 
South  &  N.  A.  R.  Co.  T.  Railroad 

Co.,  532. 

Soutter  v.  Miller,  383. 
Soward  v.  Johnston,  171. 
Sowden  v.  Sowden,  SS,  222. 
Sowler  v.  Day,  278. 
Sowles  v.  Hall,  55O. 
Spader  v.  Lawler,  458. 
Spain  v.  Hamilton's  Adm'r,  504. 
Spalding  v.  Oakes'  Adm'r,  509. 
Sparhawk  v.  Railway  Co.,  29. 
Sparks  v.  Steel  Co.,  &5. 
Sparrow  T.  Railroad  Co.,  578. 
Spaulding  v.  Warner,  614. 
Spear  v.  Smith,  108. 
Speer  v.  Burns,  406. 

T.  Evans.  147. 
Speidel  v.  Henrici,  53,  54, 
Speight  v.  Gaunt,  424,  425. 
Ppence  v.  Railroad  Co.,  506. 
Spencer  v.  Clarke,  64,  504. 
v.  Peek,  637. 
v.  Spencer,  425. 
T.  Tilden.  106. 
Spencer's  Appeal.  324.  430. 
Spicer  v.  Hoop.  1W,  575. 
Spielmann  v.  Kliest.  144. 
Spier  v.  Lnmhdin,  573. 
Spink  v.  Francis,  29. 
Spitts  v.  Wells.  609. 
Spofford  v.  Railroad  Co.,  587. 
Sprague  v.  Cochran,  78. 

v.  West,  644. 
Spread  v.  Morgan,  195. 
Spring  v.  Fisk.  99. 
Springfield  &  M.  R.  Co.  v.  Stewart 

487,  490. 

Sptirgin  v.  Adamson,  470. 
Spurlock  v.  Spronle.  434. 

v.  Sullivan.  131. 
Spurr  v.  Benedict,  278. 
Stafford  v.  Fetters.  282. 

v.  Stafford,  179. 
Stagg  T.  Jackson,  228. 
Stairley  v.  Rabe,  649. 
Standard    Paint    Co.    T.    Reynolds 


Standard    Paper   Co.    v.    Guenthei; 

173. 

Stanford  T.  Felt,  593. 
Stanley  v.  Colt,  365,  391. 
Stanton  v.  Mfg.  Co.,  172. 
Staples  v.  Parker,  109. 

v.  White,  152. 
3tapp  v.  Phelps,  454. 
Stark  v.  Hnnton,  192. 

v.  Redfield,  407. 
5tarkey  v.  Starkey,  553. 
Starks  v.  Redfield.  476. 
Starkweather  v.  Society,  387. 
Starry  v.  Korab,  171. 
State  v.  Bnnk.  353. 
v.  Dodd,  102,  109. 
v.  Goodnight,  588. 
v.  Gnilfonl,  426. 
v.  Hall,  112. 
v.  Hardware  Co.,  634. 
v.  MfBride,  112. 
T.  McGlynn.  587. 
T.  Plntt.  4.'{4. 
T.  Police  Jury,  45. 
T.  Bchweickarat,  29. 
v.  Uoland.   198. 
v.  Williamson,  360. 
State  Bank  of  St.  Louis  v.  Frame, 

161. 

State  Railroad  Tax  Cases,  602. 
Staton  v.  Davenport,  14JL. 
Stead  v.  Newdigate.  232. 
Steam  v.  Clifford,  29G. 
Stedwell  v.  Anderson,  261. 
Steed  v.  Preece.  236. 
Steedman  v.  Weeks,  613. 
Steel  v.  Dixon,  508. 

v.  Refining  Co..   172. 
Steele  v.  Frierson,  36D. 

v.  U.  S.,  57. 
Steel's  Appeal,  507. 
Steere  v.  Steere.  3(5(5. 
Stein  v.  Goddard.  595. 

v.  Nysonsjer.  557. 
Steinau  v.  Gas  Co.,  r>73.  574. 
Stephens  v.  Baird,  170. 

v.  Board.  285.  306,  416. 
v.  Cady,  597. 
Stephenson  v.  Davis.  534. 
Sternburg  v.  Bowman,  336. 
Starry  v.  Ardon.  VJii. 
Stetthoimer  v.  Killip.  266,  271. 
Stevens  v.  Church,  461. 
T.  Cooper,  454. 
V.  Dennett,   167. 
T.  Flower,  482. 
T.  Hampton.  146. 
v.  Ilulin.  142. 
T.  Institute.  470. 
v.  Ludlnin,  173. 
T.  Member.  271. 
v.  Morse,  146. 
Stevenson  v.  Polk,  545.  560. 
Steward  v.  Winters,  575. 
Stewart  v    Cattle-Ranch  Co.,  801. 
T.  Fel.ows,  435. 


CASES    CITED. 
[TlM  figure*  refer  to  pages.] 


69; 


Stewart  v.  Keith,  522. 

y.  Railway  Co.,  493. 

v.  Smith,  120. 

v.  Stokes,  252. 
Stiles  v.  Stiles,  332. 
Still  v.  Ruby,  357. 
Stillwell  v.  Wilkins,  539. 
Stimson  v.  Helps,  293. 
Stinchtield  v.  Milliken,  84,  455. 
Stines  v.  Dorman,  575. 
Stinson  v.  Dousman,  20. 
Stirling  v.  Forrester,  507. 
Stivers  v.  Tucker,  179. 
Stockbridge   Iron    Oo.   v.   Iron   Co., 

200,  202,  279,  623. 
Stockeu  v.  Stockeii,  208. 
Stocking  v.  Hanson,  56. 
Stocks  v.  Dobson,  503. 

v.  Van  Leonard,  305. 
Stockton   v.   Railroad   Co.,   83,  85, 

565. 

Stoddard  v.  Whiting,  145. 
Stone  v.  Denny,  293. 

v.  Hackett,  371. 

v.  Hale,  278. 

v.  Lumber  Oo.,  594. 

v.  Perkins,  357. 

T.  Heed,  644. 

v.  Tyree,  152. 
Storer  v.  Railway  Co.,  532. 
Storrs  v.  Barker,  121,  173,  266. 

v.  Railroad  Co.,  37. 

v.  Wallace,  162. 
Story  v.  Holcombe,  598. 

v.  Lord  Windsor,  158. 

v.  Railroad  Co.,  533,  594. 

v.  Salomon,  310. 
Stott  v.  Milne,  435. 
Stout  v.  Seabrook's  Ex'rs,  54. 
Stoutenburgh  v.  Tompkins,  270. 
Stover  v.  Eycleshimer,  496. 

v.  Mitchell,  274. 

v.  Poole,  261. 
Stow  v.  Kim  ball,  87. 
Stowe  v.  Bowen,  432, 
Stowell  T.  Robinson,  549. 
Straight  v.  Roberts,  340. 
Strand  Music  Hall  Co.,  In  re,  477. 
Stratford  v.  Powell,  196. 
Strathmore  v.  Bowes,  344. 
Stratton  v.  Best,  187. 

v.  Medical  College,  396. 
Straus  v.  Barnett,  590. 
Strauss'  Appeal,  488. 
Streatfield   v.    Streatfield,  86,  181, 

184,  198,  381. 

Streeper  v.  Williams,  102,  108. 
Street  v.  Rigby,  533. 
Streeter  v.  Rush,  104. 
Strickland  v.  Barber,  562. 

T.  Kirk,  143. 

T.  Turner,  270. 
Stringfellow  v.  Ivie,  488. 
Strode  v.  Barker,  101. 
Strong  v.  Converse,  462. 

v.  Krebs,  34. 

T.  Strong,  305. 


|  Strong  v.  Williams,  205,  206. 
Struthere  T.  Kendall,  159,  161. 
Struve  T.  Childs,  285. 
Stuart  v.  Board,  29. 
Stubbins  v.  Mitchell,  508. 
Stull  v.  Hurtt,  27S. 
Stump  v.  Findlay,  184,  185. 
Sturch  v.  Young,  650. 
Sturge  v.  Starr,  158. 
Sturgis  v.  Champueys,  66. 
Sturtevant  v.  Jaques,  403. 
Stuyvesant  v.  Hall,  148. 

v.  Hone,  148,  155. 

v.  Mayor,  etc.,  531. 
Suess  v.  Noble,  29. 
Suessenguth  v.  Brigenheimer,  292. 
Suisse  v.  Lord  Lowther,  209,  212, 

216. 

Suivey  v.  Baker,  278. 
Sullivan  v.  Bruhling,  384. 

v.  Latimer,  206. 

v.  Rabb,  586. 

T.  Royer,  590. 

v.  Sullivan,  (ill. 

v.  Sweeney,  360. 
Sumner  v.  Waugh,  157. 
Surcome  v.  Pinniger,  557. 
Susquehauna  Mut.  Fire  Ins.  Co.  T. 

Swank,  273. 

Suter  v.  Matthews,  284,  285. 
Sutherland  v.  Brush,  431 
Sutphen  v.  Fowler,  92. 
Sntton  v.  Mbrgan,  299. 
Swails  v.  Swails,  214. 
Swain  v.  Knnpp,  614. 

v.  Wall,  509. 

Swaine  v.  Perine,  344,  618. 
Sweatt  v.  Faville,  45. 
Sweeney  v.  Warren,  240. 
Sweeny  v.  Williams,  34. 
Sweetapple  v.  Bindon.  233,  381. 
Sweetzer  v.  Jones,  461. 
Swift  v.  Tyson,  160. 
Swift's  Ex'rs  v.  Society,  387. 
Swimm  v.  Bnsh,  297. 
Switzer  v.  Nofl'singer,  504. 

v.  Skiles,  420. 
Sydnor  v.  Roberts,  117. 
Syer  v.  Gladstone,  190. 
Sykes  v.  Bank,  24. 

v.  Beadon,  72,  76. 

v.  Betts,  485. 
Sylvester  v.  Born,  550. 

v.  Jerome,  72. 
Symes  v.  Hughes,  403,  404. 
Syracuse  Chilled  Plow  Co.  v.  Wing, 

342. 
Syracus*  Sav.  Bank  T.  Holden,  384. 


Taber  T.  Hamlin.  472. 
Tabor  v.  Foy.  505. 
Tadman  v.  D'Epineufl,  500. 
Tagg  v.  Bank,  134. 
Tailby  T.  Receiver,  498,  602. 


6fJ8 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Taintar  T.  Mayor  of  Morristown, 

563. 

TaJbot  T.  Earl  of  Radnor,  190. 
Talbott   T.    Duke    of    Shrewsbury, 

201. 

TaJcott  T.  Peterson,  467. 
Taliaferro  T.  Gay,  450. 
TaJieferro  v.  Burnett,  490. 
Tallman  v.  Wood,  381. 
Tamplin  v.  Jaines,  272. 
Tankard  v.  Tankard,  140. 
Tantum  v.  Coleman,  178. 
Tapia  v.  Demartini,  458. 
Tarbell  v.  West,  145. 
Tardy  v.  Morgan,  SO. 
Tarkmgton  v.  Purvis,  164. 
Tate  v.  Stooltzfoos,  146. 

v.  Williamson,  321,  328. 
Tatham  v.  Vernon,  3G7. 
Tayloe  v.  Insurance  Oo.,  533. 

T.  Johnson,  233. 

v.  Sandiford,  522. 
Taylor  v.  Baldwin,  615. 

T.  Brown,  551. 

V.  Cartwright,  216, 

T.  Collins,  467. 

T.  Dodd,  482. 

T.  Duesterberg,  343. 

T.  Eckersley,  533. 

T.  Foster's  Adm'r,  481. 

T.  Guest,  299. 

v.  Huck,  476. 

T.  Millnrd.  606. 

T.  Page,  506. 

T.  Railroad  Co.,  672,  645. 

V.  Roberts,  431. 

v.  Russell,  62. 

T.  Sheppard,  572. 

T.  Stibbert,  l^S,  140,  149. 

v.  Taylor,  213),  241,  286,  331. 
Taylor's  Ex'rs  v.  Trustees,  387. 
Tazewell  v.  Smith's  Adm'r,  230. 
Teal  v.  Walker,  454.  467. 
Teed  v.  Valentine,  339. 
Teegarden  v.  Lewis,  410. 
Teele  v.  Bishop  of  Derry,  387. 
Tempest,  In  re,  444. 
Tenant  v.  Elliott,  72. 
Teuham  v.  Herbert.  32. 
Terrell  T.  Andrew  Co.,  147. 
Terry  v.  Terry,  427. 
Terry  &  White's  Contract,  In  t», 

51. 

Tewksbtirg  v.  Spruance,  325. 
Texas  v.  Hardenberg,  81. 
Texas  &  P.  II.  Co.  v.  City  of  Mar- 
shall. 34. 

v.  Ktitoman,  90. 
Tey's  Case,  114. 
Thackwray  &  Young's  Contract,  In 

re,  546. 

Thnlimer  T.  Brinkerhoff,  360. 
Thatcher  v.  Church,  420. 

v.  Humble.  586. 
Thayer  v.  Daniels,  505. 

v.  Torrey,  -!•:•_•. 

T.  Turner,  305. 


Thayer  v.  Younge,  576. 
Thellusson  v.  Woodford,  184,  185, 

187,  391. 

Theyken  v.  Machine  Co.,  505. 
Third  Aye.  R,  Co.  v.  Mayor,  etc., 

38. 
Third  Nat.  Bank  v.  Gas  Oo^  438. 

v.  Lumber  Co.,  643. 
Thomas  v.  Bartow,  273. 

v.  Beals,  305. 

v.  Burnett,  137,  141. 

T.  Capps,  213. 

T.  Dering,  538. 

v.  Evans,  480. 

T.  Gyles,  612. 

T.  Harmon,   619. 

T.  Protective  Union,  11,  667. 

T.  Railroad  Co.,  329. 

T.  Turner's  Adm'r,  302. 

v.  Van  Meter,  56. 
Thomasou  v.  Fannin,  253. 
Thomman's  Estate,  In  re,  229. 
Thompson,  In  re,  58. 

v.  Allen  Co.,  35. 

T.  Andrus,  313. 

T.  Bank,  523. 

T.  Blanchard,  121. 

T.  Cartwright,  135, 

v.  Cochran,  616. 

T.  Corrie,  489. 

T.  Dulles,   551. 

T.  Fisher,  521. 

v.  Hudson.  98,  100. 

T.  Marshall,  50,  450. 

T.  Pioche,  144. 

v.  Railroad  Co.,  496. 

T.  Sheppard,  150. 

T.  Stanhope,  599. 

v.  Thompson,  412. 
Thompson's  Appeal,  414. 
Thompsonville    Scale    Mfg.    Co.    v. 

Osgood,  280. 
Thomson  v.  Ebbets,  643. 

v.  Smith,  79. 

v.  Thomson,  72. 
Thor  v.  Oloson.  170,  173. 
Thorley's  Cattle  Pood  Co.  T.  Mas- 
sain,  580. 
Thorn  v.  Newson.  162. 

v.  Sweeney,  586. 
Thorndike  v.  Loring,  391. 
Thorne  v.  Mosher.  179. 

v.  Prentiss.  293. 
Thornton  v.  Roll.  586. 

v.  Stewart.  251. 
Threifall  v.  Lunt,  625. 
Throckmorton  v.   Davidson,  527. 
Throgmorton  v.  Finch,  570. 
Thurston  v.  Dickinson.  615. 

v.  Percival.  495. 

Thwlng  v.  Lumber  Co.,  270,  272. 
Thynn  v.  Thynn,  417. 
Thynne   v.    Earl   of   Glengall,   205. 

215,  219. 

Tihbits  v.  Tibbits,  186,  199. 
Tichenor  v.  Dodd,  461. 
Tiernan  v.  Beam,  487. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


699 


Tiernan  v.  Hinman,  108. 

v.  Roland,  198,  548. 
Tildesley  v.  Clarkson,  548. 
Tillar  v.  Cook,  518. 
Tillaux  y.  Tillaux,  405. 
Tilley  v.  Damon,  319. 

v.  Thomas,  550. 
Tillinghast  v.  Bradford,  877. 

v.  Ooggeshall,  380. 
Tillison  v.  Ewing,  284. 
Tillman  v.  Thomas,  131. 
Tillotson  v.  Mitchell,  138. 

v.  Rose,  510. 
Tillott,  In  re,  436. 
Tilton  v.  Nelson,  176. 

v.  Tilton,  280. 

Timberlake  v.  Parish's  Ex'r,  187. 
Timmerman  v.  Dever,  313. 
Tindle  v.  Birkett,  296. 
Tingue  v.  Village  of  Port  Chester, 

603. 

Tinsley  v.  Tinsley,  490. 
Tirrell  v.  Merrill,  4. 
Titus  T.  Morse,  170. 
Tobey  v.  McAllister.  488. 
Tobias  v.  Ketchum,  367. 
Todd  v.  Grove,  320,  332. 

v.  Wilson,  302. 
Tode  v.  Gross,  105. 
Toledo,  A.  A.  &  N.  M.  R.  Co.  r. 

Pennsylvania  Co.,  45. 
Toll  v.  Davenport,  117,  622. 
Toilet  v.  Toilet.  281. 
Tolson  v.  Collins,  208. 
Tomkyns  v.  Blane.  188. 

v.  Ladbroke,  199. 
Tomlin  v.  Hilyard.  606. 
Tomlinson  v.  Bury,  507. 
Tompkins  v.  Henderson,  129. 
Toney  v.  Spragins.  186. 
Toomer  v.  Randolph,  468. 
Tooth  v.  Hallett,  505. 
Torrence  v.  Shedd,  406. 
Torrey  v,  Cameron.  406. 
Toulmin  v.  Price,  41. 
Toussaint  v.  Martinnant,  510. 
Tower  v.  Lord  Rous,  483. 
Towle  v.  Mack.  435. 
Town-v.  Needham,  121. 
Townley  v.  Bed  well,  231,  388. 
Town  of  Cherry  Creek  v.   Becker. 

117. 

Town  of  Dublin's  Case,  357. 
Town  of  Grand  Chute  v.  Winegar, 

284. 

Town  of  Springport  v.  Bank,  625. 
Town  of  Venice  v.  Woodruff,  625. 
Townsend  v.  Fenton,  556. 

v.  Houston.  557. 

v.  Little,  138. 

v.  Whitney,  512. 
Townsend  Sav.  Bank  v.  Todd,  167, 

175. 
Townshend  v.  Frommer,  384. 

v.  Goodfellow,  546. 

v.  Stangroom,  562. 
Townshend  Peerage  Case,  637. 


Tracey  v.  Sacket,  308,  317. 

v.  Shumate,  192. 
Tracy  v.  Colby,  323. 

T.  Craig.  323. 

T.  Lincoln,  174. 

T.  Murray,  193. 

v.  Talmage,  72. 
Traill  v.  Baring,  294,  303. 
Tremper  v.  Barton,  410. 
Trentman  v.  Eldridge,  163. 

T.  Fletcher,  522. 
Trenton   Banking   Co.    T.   Duncan, 

Trenton  Potteries  Co.  v.  Oliphant, 
313. 

Trentor  v.  Pothen,  134. 

Trevor  v.  Trevor,  381. 

Tribette  v.  Railroad  Co.,  38. 

Triebert  v.  Bursoss,  533. 

Trigg  v.  Read,  271. 

Trimm  v.  Marsh,  449,  450. 

Trimmer  v.  Bayne,  219,  514. 

Tripp  v.  Cook,  66. 

Triquet  v.  Thornton,  245. 

Trist  v.  Child,  314,  501. 

Trowbridge  v.  True,  592. 

Trower  v.  Elder,  109. 
v.  Newcome,  297. 

Truesdale  v.  Ford,  137,  143. 

Trull  v.  Bigelow,  163. 
v.  Eastman.  309. 

Truman  v.  Truman,  554. 

Trusdell  v.  Lehman,  275. 

Trustees,  etc,  of  Christ  Church  v. 
Parish,  387. 

Trustees,  etc.,  .  of  Presbyterian 
Church  v.  Guthrie,  386. 

Trustees,  etc.,  of  Town  of  Brook- 
haven  v.  Smith.  108. 

Trustees  of  Columbia  College  v. 
Thacher,  530.  574. 

Trustees  of  First  Orthodox  Congre- 
gational Church  of  Middleville  v. 
Walrath.  109. 

Trustees  of  Goshen  Tp.  T.  Railroad 
Co.,  76. 

Trustees  of  Internal  Imp.  Fund  v. 
Greenough,  59. 

Trustees  of  Philadelphia  Baptist 
Ass'n  v.  Hart's  Ex'rs,  386. 

Trustees  of  Schools  of  Sheik.  128. 

Trustees  of  Union  College  v.  Wheel- 
er, 137,  449.  506. 

Trustees  of  Watertown.  T.  Cowen, 
178. 

Tryon  v.  Huntoon.  408. 
v.  Munson.  451. 

Tuchman  v.  Welch,  567,  578. 

Tuck  v.  Downing.  292,  296, 

Tucker  v.  Andrews,  67. 
v.  Burrow,  411. 
v.  Hadley.   489. 
T.  Moreland.  355. 
v.  Society.  357. 

Tudor  v.  Anson.  252. 

Tulk  v.  Moxhay,  574. 

Tu unison  v.  Chamblin,  139. 


700 


CASKS    CITED. 
[The  figures  refer  to  pages.] 


Tunstall  v.  Christian,  592. 
Tupper  T.  Powell,  67. 
Turner's  Estate,  In  re,  218. 
Turinan  v.  Bell,  142. 
Turner  v.  Collins,  328. 

v.  Gorney,  424. 

v.  Crebill,  152. 

T.  Fliun,  33,  515. 

T.  Harvey,  301. 

v.  Kelly,   277. 

v.  Morgan,  613. 

v.  Shaw,  622. 

v.  Turner,  29,  523. 

v.  Wilkinson,  456. 
Turnipseed  v.  Hudson,  171. 
Turpie  v.  Lowe,  454. 
Turpin  v.  Banton,  533. 
Tussaud  v.  Tussaud,  201,  202,  213, 

220. 

Tuthill  v.  Morris,  67,  68. 
Tuttle  v.  Batchelder  &  Lincoln  Co., 
32. 

v.  Gilmore,  423,  428. 

v.  Jackson,  143. 
Twining  v.  Morrice,  537. 
Twin-Lick  Oil  Co.  v.  Marbury,  55. 
Twombly  v.  Cassidy,  470. 
Twyne's  Case,  114,  337. 
Tydings  v.  Pitcher,  149,  150. 
Tyler  v.  Ass'n,  175. 

v.  Gardiner,  330. 

v.  Gould,  502. 

v.  Hamersley,  29. 

T.  Savage,  35,  40,  301. 

v.  Wilkinson,  596. 
Tyrrell  v.  Bank,  325. 
Tyrrell's  Case,  352. 
Tyson  v.  McGuineas,  494. 
Tyus  v.  Rust,  644. 

u 

Uhlman  v.  Insurance  Co.,  520. 
Unckles  v.  Colgate,  77. 
Underwood  y.  Curtis,  229,  230. 
linger  v.  Leiter,  513. 
Union   Bank   of  London   v.   Kent, 

122. 

Union  Canal  Co.  v.  Young,  158. 
Union  Mfg.  Co.  v.  Lounsberry,  597. 
Union  Mut.  Life  Ins.  Co.  v.  Slee, 

175. 
Union  Nat.  Bank  v.  Goetz,  439. 

T.  Hines,  76. 
Union   Pac.    R.    Co.    T.    McAlpine, 

416,  552.  556. 
v.  Railroad  Co..  526.  532. 
Union  Pass.  Ry.  Co.  T.  Mayor,  etc., 

KM. 
Union   Trust  Co.   Y.   Railway  Co., 

651. 

T.  Weber,  603. 
U.  S.  T.  Ass'n,  313. 
v.  Barrowrliff,  57. 
T.  Beebe,  57. 
T.  City  of  Alexandria,  57. 


U.  S.  7.  Elliott,  46. 

v.  Insley,  57. 

V.  Kirk  patrick,  57. 

T.  Land  Co..  162,  164. 

T.  Ranche  Co.,  588. 

v.  Steffens,  599,  600. 

v.  Throckmorton,  286. 

v.  Van  Zandt,  57. 

v.  Williams,  57. 

v.  Wilson,  629. 

United  States  Bank  v.  Bank,  267. 
United  States  Mortg.  Co.  v.  Sperry, 

United  States  Trust  Co.  T.  Railroad 

Co.,  650. 

Upchurch  v.  Anderson,  71. 
Upham  v.  Emerson,  193. 
Upton  v.  Tribilcock,  290. 
Urann  v.  Coates,  363. 
Ureu  v.  Walsh,  586. 
Urquhart  v.  MacPherson,  306. 


Vail  v.  Foster,  490. 

v.  Reynolds,  305. 
Valentine  v.  Austin,  153. 

v.  Decker,  385. 

v.  Lunt,  163. 
Van  AJen  v.  Bank,  438. 
Van  Ainringe  v.  Morton,  114. 
Van  Buren  v.  Olmstead,  468. 
Vanbuskirk  v.  Insurance  Co.,  504. 
Vance's  Heirs  v.  Johnson,  452. 
Vanderbeck  v.   City  of  Rochester, 

261. 

Van  Deusen  v.  Sweet,  317,  355. 
Van  Donge  T.  Van  Donge,  278. 
Vandoren  v.  Todd,  487. 
Van  Dyke's  Appeal,  In  re,  184,  189. 
Vane  v.  Vane.  305,  306. 
Van  Epps  v.  Harrison,  292. 

v.   Van  Epps.  322. 
Van  Gorder  v.  Smith,  370. 
Van  Heusen  v.  Radcliff,  159. 
Van  Horn  v.  Overman,  175. 
Van  Houten  v.  Post,  203,  216. 
Vaa  Keuren  v.  Oorkins,  504. 

v.  Railroad  Co.,  139,  141. 
Van  Ness  v.  Hadsell,  172. 
Van  Nort's  Appeal,  603. 
Van  Rensselaer  v.  Van  Rensselaer, 

40. 

Van  Riper  v.  Van  Riper,  206,  207. 
Vansant  r.  Allmon,  466. 
Van  Sohaack  v.  Leonard,  186. 
Van  Steenwyck  v.  Washburn,  198. 
Van  Vechten  T.  Keator,  232. 
Van  Wegenen  T.  Cooney,  588. 
Van  Winkle  v.  Williams.  513. 
Van  Wyck  T.  Alliger.  584. 
Varet  v.  Insurance  Co.,  42. 
Varick  v.  Briggs,  157. 

v.  Edwards.  309,  380. 
Varnum  T.  Leek,  <>49. 
Vason  T.  Ball.  450. 


CASES    CITED. 


701 


Go.    T. 


Yasser  v.  Henderson,  338. 
Yuughan  v.  Hewitt,  572. 

v.  Vincent,  649. 
Vaughn  v.  Johnson,  572. 
Vaught  v.  Cain,  550. 
Verden  v.  Sloeum,  465. 
Veruer  v.  Bctz,  451,  467. 
Vernon  v.  Vawdry,  440. 

v.  Vernon,  193. 
Verona     Central     Cheese 

Murtaugh,  133. 
Verplanck  v.  Van  Buren,  290. 
Very  v.  Russell,  466. 
Vezey  v.  Jaruson,  389. 
Vickers  T.  Vickers,  216. 
Vidal  v.  Girard's  Ex'rs,  357,  386. 
Village  of  Dwight  v.  Hayes,  594. 
Village  of  Hyde  Park  v.  Oity  of 

Chicago,  605. 
Villines  v.  Norfleet,  441. 
Virginia  Land  Co.  v.  Haupt.  302. 
Visitation    Academy    v.    Clemens, 

396. 

Vliet  v.  Young,  454. 
Vogle  v.  Brown,  507. 
Von  Trotha  v.  Bamberger,  553. 
Voorhis  T.  Ohilds'  Ex'ra,  60. 

v.  Olmstead,  176. 
Voris  T.  State,  61. 
Vose  v.  Oowdrey,  80. 
Voyle  T.  Hughes,  373. 
Vreeland  v.  Blawvelt,  547. 

v.  Clafflin,  120. 
Vrooman  v.  Turner,  463, 

w 


Waddell  v.  Beach,  33. 
Wade  v.  Bunn,  39. 

v.  Withington,  114. 
Wadsworth  v.  Blake,  513, 

v.  Lyon,  461. 
Wagner  v.  Shank,  572. 
Wahl  v.  Barnum,  553. 
Wait  v.  Axford,  619. 

v.  Maxwell,  316. 
Wait*  v.  Bingley,  612. 
Wake  T.  Conyers,  617. 

v.  Wake,  196,  199. 
Wakeham  v.  Barker,  531. 
Wakema-n  v.  Dalley,  289,  295. 

v.  Kingsland,  644. 
Walcott  v.  Hall,  253. 

v.  Watson,  544. 
Walden  v.  Skinner,  261,  279,  620, 

621. 

Wales  v.  Coffin,  68. 
Walker  v.  Brooks,  402,  498. 

v.  Brown,  33. 

v.  Cheever,  34. 

v.  Daly,  35. 

v.  Dreville,  21. 

v.  Hill's  Ex'rs,  761 

v.  Preswick,  489. 

v.  Staples,  473. 

T.  Struve,  490. 


[The  figures  refer  to  pages.] 

Walker  v.  Symonds,  441. 

v.  Walker,  32$. 
Wall  v.  Oolshead,  241. 
Wallace  v.  Moody,  146. 
Wallace  v.  Greenwood,  238. 

v.  Johnstone,  455. 

v.  Rappleye,  314. 

T.  Scoggins,  555. 

v.  Stevens,  471. 
Waller's  Adm'r   v.  Catlett's  Ex'rs, 

427. 

Walling  v.  Kinnard,  560. 
Wallis  v.  Carpenter,  102. 

v.  Duke  of  Portland,  335. 

v.  Smith,  99,  101. 
Wallop  v.  Hewett,  210. 
Walmsley  v.  Child,  261, 
Walsh  v.  King,  603. 
Walsham  v.  Stainton,  328. 
Walter  v.  Selfe,  589. 
Walton  v.  Cody,  477. 

v.  Hargroves,  489. 

T.  Tusten,  75. 

v.  Walton,  400,  402. 
Walwyn  v.  Coutts,  385. 
Ward  v.  Baugh,  200. 

v.  Building  Co.,  108. 

v.  Davidson,  415. 

v.  Dewey,  627. 

T.  Hogan,  576. 

v.  Ward's  Heirs,  615. 
Wardell  v.  Williams,  535. 
Warden  v.  Jones,  557. 

v.  Sup'rs,  602. 

Warder  v.  Baldwin,  175,  176. 
Warford  v.  Noble,  233. 
Waring  v.  Somborn,  175. 
Warmstrey  v.  Tanfield,  496. 
Warneford  v.  Thompson,  252. 
Warner  v.  Bates,  365. 

v.  B:iynes,  612,  613. 

T.  Bennett,  83. 

T.  Conant,  572. 

v.  McMullin,  35,  520. 
Warnock  v.  Campbell,  318, 

v.  Harlow,   117. 
Warren,  Ex  parte,  648. 

v.  Bank,  427. 

v.  Richmond,  137. 

T.  Schainwald,  302. 

v.  Warren,  219.    . 
Warren  Co.  v.  Marcy,  154. 
Warren  Mills  v.  Seed  Co.,  567,  586. 
Warrick  v.  Warrick,  133,  282. 
Warrin  v.  Baldwin,  605. 
Washburn  v.  Goodheart.  343. 

v.  Van  Steenwykj  193,  198. 
Wason  v.  Colburn,  80. 
Waterbury  v.  Westerrelt,  75. 
Waterman  T.  Alden,  422,  448. 

v.  Banks,  551. 

v.  Mntteson.  452. 

v.  Seeley.  410. 

T.  Spaulding,  421. 
Waters  v.  Tazewell,  312. 
Waterson's  Appeal,  193. 


702 


CASES    CITED. 
[Th*  flgurei  rater  to  pages.] 


Waters  Pierce  Oil  Co.  Y.  Oty  of 

Little  Rock.  29. 
Wathen  v.  Smith,  206. 
Watkins  T.  Holman,  89. 

T.  Holrnan's  Lessee,  20. 
Watrous  v.  Allen,  313. 
Watson  v.  Doyle,  540. 

y.  Ferrell,  82. 

T.  Hunter,  582,  584. 

T.  Marston,  539. 

v.  Mercer,  146. 

T.  Smith,  800. 

T.  Sutherland,  567,  586, 

T.  Watson,  196,  216, 

r.  Wilcox,  513. 

v.  Wilson,    153. 
Watson's  Appeal,  382. 
Watson's  Kx'rs  v.  McLaren,  606. 
Watt  v.  Watt,  252. 
Watters  v.  Connelly.  172. 
Watts  v.  Bullas,  252. 

v.  Camors,  109. 

y.  Cummins,  278,  291,  297. 

T.  Frazer,  33. 

T.  Kellar,  537. 

Watt's  Ex'rs  v.  Sheppard,  110. 
Way  v.  Roth,  622. 
Wayne  Tp.  v.  Cahill,  495. 
Weakley  v.  Watkins,  71. 
Weall,  In  re,  425. 
Weare  v.  Linnell,  485. 
Wearin  v.  Munson,  587. 
Weaver  v.  Harden,  158,  162. 

v.  Carpenter,  305. 

T.  Carter,  271. 

v.  Fisher,  415. 

T.  Lei  man,  401. 

v.  Shenk,  544. 
Webb  v.  Chisolm,  547. 

T.  Ear  I    of    Shaftesbory,     184, 
185,  434. 

T.  Fuller,  519. 

v.  Hoselton.  382. 

v.  Jones,  428. 

T.  Robinson,  489. 

v.  Smith.   514. 
Webb's  Estate,  In  re,  85,  872. 
Webster  v.  Bnss,  312. 

v.  Cecil,    543. 

T.  Clark,  338. 

T.  Harris.  280. 

v.  Morris,  :!!).">. 
Webster's  Appeal.  518. 
Wedgrwood  v.  Adams,  539. 
Weed  v.  Mirick,  477. 

T.  Smull,  520. 

v.  Weed.  260. 
Weeks  v.  Hibson.  396. 

v.  Patten,  192. 

T.  Weeks,  185,  614. 
Weener  v.  Brayton,  599,  600. 
Weinstein  v.  Bank,  176. 
Weir  v.  Bell.  288. 

v.  Day,  338. 
Wei RC'S  Appeal,  74. 
Weiss  T.  Levy.  32. 
Weisaer's  Adm'rs  v.  Denison,  133. 


Welch  v.  Whelpley,  557. 

Welland   Canal   Co.    v.    Hathaway. 

179. 

Weller  v.  Wayland,  340. 
Welles  T.  Yates,  620. 
Wellesley    v.   Earl   of   Mornington, 
345. 

T.  Wellesley,  87. 
Wells  v.  Foster,  495, 

T.  Lamney,  33. 

T.  McGeoch,  302. 

T.  Miller,  59,  507. 

T.  Millett,  299. 

T.  Iklorrow,  157,  159. 

T.  Neff,  265. 

T.  Pierce,  3,  4,  20,  170. 

v.  Polk,  146. 

T.  Smith.  111. 

v.  Waterhouse,  299. 
Welsh  v.  Crater,  232. 
Wendell's  Ex'rs  v.  Van  Renssela«r, 

121. 

Wentz's  Appeal,  236. 
Wenzel  T.  Shulz,  298. 
Werner  v.  Zierfuss,  341. 
Wert  v.  Naylor,  100. 
Wertheimer  v.  Thomas,  137. 
Wesley  Church  v.  Moore,  34. 
West  v.  Cobb,  573. 

v.  Howard,  33. 

y.  Mayor,  etc.,  29,  38. 

v.  Russell,  317. 

v.  Smith,  586. 

Westbrook  v.  Gleason,  158,  159. 
Westby  v.  Westby,  265. 
Westcott  v.  Midd'leton,  589. 
Western  Assur.  Co.  v.  Ward,  619. 
Western  Bank  v.  Sherwood,  505. 
Western  Land  Ass'n  v.  Banks,  172. 
Western  R.  Co.  v.  Nolan,  002. 
Western  Union  Tel.  Oo.  v.  Judkins, 

585. 

Weston  v.  Johnson,  214,  216. 
West  Point  Iron  Co.  v.   Reymert, 

583,  585. 

Wetherby  v.  Dixon,  215. 
Wetherell  v.  Eberle,  628. 

v.  Joy,  522. 

Wetherill  v.  Hough,  238. 
Wetmore  v.  Porter,  416. 
Whaley  v.  Eliot's  Heirs,  67. 

v.  Whaley.  406. 
Whnlley  v.  Snail,  147. 
Wlisiteley  v.  Barker,  67. 
Wheadou  v.  Olds,  257. 
Wheaton  v.  Hibbard,  78. 

v.  Peters,  597. 
Wheeler  v.  Insurance  Co.,  79. 

v.  Kidder,  410. 

T.  Kirtland,  160,  404. 

v.  Randall.  296. 

v.  Sage,  329. 
Whoelock  v.  Noonan,  87,  667,  585- 

587. 

Whelan  v.  Whelan,  332. 
Wheldale  v.  Partridge.  243,  246. 
Whelen,  Appeal  of,  261. 


CASES    CITED. 
[The  HCUTM  refer  to  pages.] 


708 


Whelen  v.  Phillips,  360. 
Whelen's  Appeal,  264. 
Wheless  v.  Wheless,  227. 
Whicker  v.  Hume,  387. 
Whipperman  v.  Dunn,  619. 
Whistler  v.  Webster,  185,  188. 
Whiston's  Settlement,  In  re,  897. 
Whitcomb's  Estate,  In  re,  870. 
White  v.  Ashton,  171. 

v.  Bank,  73. 

V.  Carpenter,  407. 

T.  Colernan,  502. 

v.  Damon,  546. 

T.  Denman,  146. 

T.  Downs,  487. 

T.  Drew,  87. 

T.  Foster,  149,  150. 

V.  Fratt,  40. 

v.  Hall,  93. 

v.  Hampton,  520. 

T.  Howard,  224,  248. 

v.  Jones,  488. 

v.  Kauffman,  483. 

v.  Megill,  466. 

V.  Miller,  510. 

T.  O'Bannon,  553. 

T.  Rittenmyer,  4501, 

V.  Union,  311. 

v.  Warner,  83. 

V.  White,  361. 

v.  Williams,  489. 
Whitecar  v.  Michenor,  868. 
Whitehead  v.  Kitson,  580. 

y.  Wells,  132. 
Whiteley  v.  Learoyd,  427. 
Whitfield  v.  Levy,  108,  109. 
Whitley  v.  Ogle,  410. 

v.  Whitley,  185,  199. 
Whitman  v.  Porter,  508. 

v.  Weston,  117,  158. 
Whitmore  v.  Hay,  621. 

v.  Learned,  408. 
Whitney  v.  Burr,  u-o. 

v.  Oity  of  Port  Huron,  627. 

v.  Dutch,  365. 

v.  Fox,  442. 

v.  Holmes,  172. 
Whitridge  v.  Durkee,  510. 

v.  Parkhurst,  195. 

T.  Whitridge,  331. 
Whittemore  v.  Fisher,  477. 
Whitten  v.  Whitten,  609. 
Whittick  v.  Kane,  162. 
Whitton  v.  Russell,  248. 
Whitwell  v.  Winslow,  171. 
Whitworth  v.  Thomas,  75. 
Wickersham  v.  Orittenden,  45. 

T.  Zinc  Co.,  134. 
Wickes  v.  Lake,  139. 
Wight  v.  Rindskopf,  314. 
Wilbanks  v.  Wilbanks,  184. 
Wilber  v.  Lynde,  325. 

v.  Wilber,  193. 
Wilbraham  v.  Livesey,  140. 
Wilcocks  v.  Wilcocks,  86,  222. 
Wilcoz  T.  Allen,  90. 


Wilcox  v.  Hill,  130. 

v.  Howell,  179. 

v.  Lucas,  277,  278. 
Wilcus  v.  Kling,  105. 
Wilder  v.  Brooks,  145. 

v.  Ranney,  234. 

v.  Wilder,  179. 
Wilhelmson  v.  Bentley,  001. 
Wilkes  v.  Holmes,  252. 
Wilkin  v.  Barnard,  297. 
Wilkins  v.  Aikin,  596,  598. 
Wilkinson  v.  Babbitt,  513. 

v.  Barber,  389. 

v.  Dent,  186. 

T.  Elliott,  154. 

v.  Henderson,  61. 

T.  May,  489. 

T.  Searcy,  642, 

v.  Sherman,  318. 

v.  Sterne,  522. 

v.  Stuart,  609,  611,  612. 

v.  Tousley,  310. 

v.  Wilkinson,  435. 
Willan  v.  Willan,  537. 
Willard  v.  Finnegan,  470. 

v.  Tayloe,  08,  530,  538. 
Willemin  v.  Dunn,  285. 
Willes  v.  Greenhill,  134. 
Willesford  v.  Watson,  533. 
Willey  v.  Hodge,  622. 
Willey's  Estate,  In  re,  388. 
Wm.  Rogers  Mfg.  Co.  T.  Roger*, 

531,  576. 
Williams  v.  Clink,  404. 

v.  Orary,  207. 

v.  Fitch,  418. 

v.  Fitzhugh,  67. 

v.  Haynes,  32. 

v.  Howard,  528. 

v.  Ingersoll,  501,  503,  C04. 

T.  Jenkins,  649. 

v.  Kershaw,  389. 

T.  Lucas,  476. 

v.  McFadden,  291i 

T.  McKay,  428. 

v.  Matthews,  644. 

T.  Nichol,  423. 

v.  Nixon,  432. 

T.  Powell,  324. 

T.  Robinson,  650. 

y.  Shelly,  159. 

v.  Simmons,  485. 

v.  Spurr,  301. 

v.  Thorn,  377. 

T.  U.  S.,  266. 

T.  Vreeland,  417,  4181 

T.  Witfj?and,  612. 

T.  Williams,  317,  328,  891,  892, 

431). 

Williams'  Appeal,  217,  345. 
Williamson    v.    Brown,    125,    187, 
143. 

v.  Oarskadden,  285. 

v.  Monroe,  52. 
Willis  v.  Gay,  149. 

v.  Me lii tyre,  523, 


704 


CASES    CITED. 
[Tie  flgurM  refer  to  pages.] 


Wffli*  T.  Morris,  330. 

Y.  Smyth,  374. 

T.  Willis,  408. 
Willmott  v.  Barber,  539. 
Wills  v.  Slade,  008. 
Wills'  Appeal,  421. 
Willwerth  v.  Leonard,  316. 
Wilmot  v.  Woodhouse.  209. 
Wilson   v.   City   of   Mineral   Point, 
583. 

v.  Cox,  193. 

v.  Davisson.  485. 

v.  Eigenbrodt,  460. 

T.  Hurt,  149. 

v.  Hill.  586. 

T.  Joseph,  91. 

T.  Land  Co.,  117. 

v.  McOarty,  57. 

T.  Moore,  440. 

v.  Perry,  395. 

v.  Randall,  277. 

v.  Roots,  551. 

v.  Soper,  513. 

v.  Stewart,  622. 

v.  Townshend,  184,  185. 

v.  Webber,  635. 

v.  Wilson,  431,  443. 
Wimer  v.  Wimer,  93. 
Winans  v.  Huyck,  263. 
Winchell  T.  Winchell,  556. 
Winchester  v.  Railroad  Co.,  182. 
Windram  v.  French,  295. 
Wing  T.  Spalding,  643. 
Winship  v.  Pitts,  582. 
Winslow  v.  Nayson,  41. 

v.  Cummings,  357. 
Winston  v.  Browning,  277. 

v.  Gwathmey,  299. 
Wintermute  v.  Snyder,  260. 
Winters  v.  Bank,  460. 
Winton  v.  Freeman,  75. 
Wintour  v.  Clifton,  186. 
Wisconsin  Cent.  R.  Co.  v.  Land  Co., 

382,  451. 

Wise  v.  Railroad  Co.,  596. 
Wiseman  v.  Hutchinson,  149,  150. 
Wiser  T.  Allen,  362. 
Wisner  T.  Dodds,  635. 
Wistar's  Appeal,  266. 
Wiswall  T.  McGown.  40. 
Wiswell  T.  Church,  601. 
Witczinski  v.  Everman,  459. 
Withers  v.  Little.  161. 

v.  Yeadon,  2."2. 
Wittenbrock  v.  Parker,  132. 
Wolbert  T.  Lucas,  461. 
Wolf   Creek   Diamond   Coal   Oo.    T. 

Schultz,  104,  105. 
Wolfort  Y.  Reilly,  427. 
•Wolverharapton    &   W.    R.    Co.    T. 

Railway  Co.,  574. 
Womack  v.  Powers,  570. 
Wood  v.  Amory.  300. 

T.  Briant,  208. 
T.  Biirnhnm,  381. 
T.  Chapin,  150. 


Wood  v.  Cone,  240. 

v.  Downes,  57. 

Y.  Fisk,  61. 

T.  Fleet,  606. 

r.  Hubbell,  249. 

T.  Keyes,  240. 

T.  Little,  611. 

T.  Mann,  161. 

T.  Price,  260. 

Y.  Seeley,  178. 

T.  Swift,  570. 

T.  Trask,  451. 

T.  Whelen,  468. 

T.  Williams,  442. 

v.  Wood,  192. 
Woodall  v.  Kelly,  487. 
Woodbridge  v.  Perkins,  504. 
Woortburn's  Estate,  In  re,  198, 
Woodbury  v.  Woodbury,  332. 
Woodford  v.  Leaven  worth,  24. 
Woodgate  v.  Fleet,  360. 
Woodruff  v.  Institution,  506. 

v.  Water  Co.,  550. 

v.  Woodruff,  53<i,  545. 
Woods  v.  Evans,  5'J9,  544. 

T.  Farmere,  129,  137,  142. 

v.  Monroe,  38. 
Woodworth  v.  Bennett,  77. 
Woolcocks  v.  Hart,  514. 
Wooldridge  v.  Norris,  510. 
Woollaru  v.  Hearn.  562. 
Woolley  v.  Holt,  4.50. 

v.  Osborne,  520. 
Woolsey  v.  Judd,  598. 
Word  v.  Word.  649. 
Work  v.  Brayton,  160. 
Workman  v.  Guthrie,  170. 
Wormer  v.  Agricultural  Work*,  513. 
Wormley  T.  Worm  ley.  324. 
Worrall  v.  Harford,  435. 

v.  Munn,  79,  559. 
Worsley    v.    Earl    of    Scarborough, 

].">•_'. 

Worth  v.  Hill,  472. 
Worthy  v.  Rrady,  339. 

v.  Caddoll,  159. 

Wrnpg  v.  Comptroller  General,  488. 
Wrijrht  v.  Bundy.  160. 

v.  Douglass.  362. 

T.  Evans.  573. 

T.  Hazen,  177. 

v.  Henderson,  451. 

T.  Laing,  523. 

v.  MrCromiek,  280l 

T.  Marsh.  609. 

T.  Moore,  593. 

v.  Pearson,  380. 

v.  Rose,  230. 

T.  Ross,  473. 

Y.  Vanderplnnk,  828,  C00,  881. 

Y.  Wilkin,  365. 

Y.  Wood,  141. 

Y.  Wright,  241. 
Wriirlit's  Appeal,  172. 
Wrist  en  v.  Bowles,  535. 
Wuesthoff  Y.  Seymour,  299. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


70.') 


Wurt's  Ex'rs  v.  Page,  228,  230,  232. 
\Yyeth  v.  Stone,  597. 
Wylson  T.  Dunn,  536,  54S. 


Yuncey  T.  Mauok,  490t 

v.  Radford,  006. 
Yaple  T.  Stephens,  512. 
YarbrwiHjh  T.  Thompson  840,  6tt. 
Yard  T    Insurance  CX,  fl8. 
"card's  Appeal,  3W. 
Yates  v.  Tisdale,  642. 
Yauger  T.  Skinner,  317. 
Yenner  r.  Hammond,  108 
Yockney  v.  Hansard,  200. 
York  Bldp.  Co.  T.  MaqJSenii*   825. 
Youn  v.  Lament,  318. 
Young  v.  Devries,  120. 

V.  English.  522. 

BATON,EQ.— 45 


Young  v.  Gay,  159. 

v.  Wilson,  147. 

v.  Young,   233,   367.   872,   874, 

541,  642,  553,  616. 
Younghusband  T.  Gisborne,  877. 
Youngs  T.  Lee,  159,  181. 
Youst  T.  Martin,  161. 
Yunclt'g  Appeal,  216. 


Zabriskie  v.  Smith,  494. 

Zaegel  T.  Kuster,  470. 

Zahrt,  In  re.  191. 

Zeigler  v.  Eckert,  209. 

Zeisweiss  v.  James,  376. 

Zell  Guano  Co.  v.  Heatherly,  385. 

Zimmerman  v.  Fraley,  441.          Hr 

v.  Kinkle,  416. 
Zoeller  v.  Riley,  117,  163. 
tollman  T.  Moore,  157,  258. 


INDEX. 

[THE  FIGURES  REFER  TO  PAGES.] 


ACCIDENT, 

definition,  247. 

right  to  relief  because  of,  248. 

title  to  relief,  248. 

inadequacy  of  legal  remedy,  248,  249. 
When  relief  will  be  afforded,  250. 

lost  or  destroyed  instruments,  250. 

defective  execution  of  powers,  251. 

erroneous  payments,  252. 

against  judgments,  253. 
and  mistake,  distinction,  255. 

ACCOUNTING, 

jurisdiction  of  equity,  516. 

when  jurisdiction  will  be  exercised,  617. 

fiduciary  relationship,  518. 

mutual  accounts,  519. 

complicated  accounts,  519. 
defense  of  stated  accounts,  520. 

effect  of  fraud,  accident,  or  mistake,  521. 
application  of  payments,  521. 

appropriation  by  debtor,  522. 

when  creditor  may  appropriate,  523. 

absence  of  appropriation  by  either  party,  528. 

ADEMPTION, 

see  "Satisfaction." 

of  legacy  by  portion  or  advancement,  211. 
presumption  in  favor  of,  215. 

ADEQUATE  REMEDY, 

see  "Inadequacy  of  Legal  Remedy.*1 

ADVANCEMENT, 

satisfaction  of  legacy  by,  211. 

AGENT, 

notice  of,  is  that  of  principal,  132. 
when  not  to  bind  principal,  133. 
acquired  in  prior  transaction,  133. 
fact  within  scope  of  agency,  134. 
must  be  of  material  fact,  135. 
»nd  principal,  transactions  constructively  fraudulent,  824. 

gifts  between,  when  constructively  fraudulent,  331. 
EATON.EQ.  (707) 


708  INDEX. 

[The  figures  refer  to  paces.] 

ANCILLARY  REMEDIES, 
bill  of  discovery,  630. 
bills  to  perpetuate  testimony,  636. 
examination  of  witnesses  de  bene  ease,  637. 
writ  of  ne  exeat,  638. 
interpleader,  639. 
receivers,  645. 

ASSIGNMENTS, 

at  common  law,  prohibited,  491. 

modern  rule,  492. 

effect  of  Judicature  acts,  493. 
Of  choses  In  action,  when  subject  to,  493. 

cause  of  action  must  survive  and  pass  as  an  asset,  499. 

personal  injuries,  damages,  494. 

void  on  grounds  of  public  policy,  495. 

equitable  Jurisdiction  in  favor  of  assignee,  495. 

subject  to  existing  equities,  505. 
of  possibilities  and  expectancies,  496. 
of  after-acquired  property,  496,  497. 

future  wages,  499. 
order  upon  a  fund,  500. 

acceptance  not  required,  500. 

there  must  be  an  actual  appropriation,  601. 
notice  to  debtor,  not  necessary,  503. 

effect  of  neglect  to  give,  503. 

ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS, 
trust  relation  created,  384. 
Irrevocable  by  assignor,  384. 

ATTORNEY  AND  CLIENT, 

transactions,  when  presumptively  fraudulent,  326. 
gifts,  when  fraudulent,  331. 

AULA  REGIS, 
origin,  5. 

AUXILIARY  JURISDICTION, 
of  equity,  origin,  42. 

BANKRUPTCY, 

laws  founded  on  maxim,  "Equality  Is  equity,**  58L 

BONA  FIDE  PURCHASE, 
doctrine  stated,  156. 

application,  156,  157. 

merits  of  litigant  parties  not  considered,  167. 
•uentlal  elements,  158. 

consideration,  valuable,  described,  158. 
security  for  antecedent  debt,  159. 
part  payment  before  notice,  161. 
Absence  of  notice,  161'. 

grantee  In  quitclaim  deed,  162. 


INDEX.  709 

[The  figures  refer  to  pace*.] 

BONA  FIDE  PURCHASE— Cont'd. 
presence  of  good  faith,  1(53. 

what  constitutes  good  faith,  1631 
inadequacy  of  consideration,  164. 
from  trustee,  rights  of  cestui  que  trust,  437. 

BOUNDARIES, 

establishment,  Jurisdiction  of  equity,  617. 

when  jurisdiction  will  be  exercised,  617. 
CANCELLATION, 

of  written  instruments,  625. 

void,  but  apparently  valid,  625. 
voidable  on  ground  of  fraud  or  mistake,  628. 
see  "Fraud";    "Mistake." 

CESTUI   QUE   TRUST, 

see  "Trusts." 
maj   follow  trust  property,  436. 

rights  of  bona  fide  purchasers,  437. 
ability  to  identify,  438. 

CHANCERY,    COURT   OF, 

see  "Equity";    "Equity  Jurisdiction." 
origin  and  history,  1. 
derivation  from  privy  council,  0. 
petitions,  earliest  reference,  8. 
In  reign  of  Edward  III.,  8. 

ordinance  creating,  9. 
established  as  permanent  court  la  reign  of  Richard  IL,  lOt 

CHARITIES, 

see  "Trusts." 
what  are,  386. 
cy  pres  doctrine,  393. 

CHATTEL  MORTGAGE, 
defined,  472. 

title,  when  vests  in  mortgagee,  472. 
equity  of  redemption,  472. 

CLOUD  ON  TITLE, 

what  constitutes,  626. 
Jurisdiction  of  equity,  626. 
•uit  to  remove,  when  maintainable,  627. 
plaintiff  must  possess  legal  title,  627. 

COMMERCIAL  AGENCIES, 

communications  to,  migrepresentationg,  296. 

COMPLETE  RELIEF, 

equity  to  retain  Jurisdiction  to  award,  39. 

CONDITIONAL  SALE, 
aa  a  mortgage,  456. 

CONSTRUCTIVE  NOTICB, 
see  "Notice," 


710  INDEX. 

[The  figures  refer  to  pages.] 
CONTRACTS, 

see  "Fraud";    "Mistake";   "Specific  Performance." 
penalty  or  liquidated  damages  for  breach,  102. 

rules  governing  determination,  102-104. 
forfeiture,  equity  will  not  enforce,  110. 

when  relief  will  be  afforded,  111. 
estates  created  by,  superior  to  voluntary  transfer,  118. 

CONTRIBUTION, 

remedy  based  on  maxim,  "Equality  Is  Equity,"  59. 

where  mortgage  debt  is  paid  by  person  not  primarily  liable,  470. 

where  one   of   several   parties  liable  for  a  debt  pays   more 

than  his  proportion,  507. 
application  In  case  of  co-sureties,  508. 

CONVERSION,  EQUITABLE, 

doctrine   based   on   maxim,    "Equity   looks   on   that   as   done 
which  ought  to  be  done,"  78. 

and  on  maxim,  "Equity  looks  to  Intent  rather  than  form," 

82. 

definition,  223. 
doctrine,  foundation,  223. 
Intention,  necessity  of,  224. 
application  of  doctrine,  224. 

to  trusts  under  wills,  224. 

settlements  and  other  contracts  inter  vlvog,  224. 
land  contracts,  interest  of  vendee,  real  property,  225. 

of  vendor,  personalty,  225. 
partnerships,  application  of  doctrine,  228. 
words  sufficient  to  effect,  226. 

must  be  clear  and  imperative,  226. 

Implied  from  scope  of  instrument,  228. 

determination  of  intent,  227. 
when  to  take  place,  228. 

In  case  of  wills  from  death  of  testator,  228,  229. 

In  case  of  contracts  inter  vivos,  228,  230. 
contracts  containing  option  to  purchase,  when  to  take  effect, 

231. 

land  directed  to  be  sold  to  be  treated  as  money,  232. 
money  directed  to  be  invested  in  land  to  be  treated  as  land,  232. 
doctrine,  qualification,  232. 

not  applicable  to  persons  having  no  interest,  233. 
by  paramount  authority,  235. 

order  of  courts  decreeing  sale  of  lands,  235. 
total  failure  of  purposes,  238,  239. 
partial  failure  of  purposes,  239,  240. 

In  case  of  a  will.  239,  240. 

intention  of  testator  to  convert  out  and  out,  241. 

in  case  of  a  deed,  239,  '24'2. 
double,  when  to  take  place,  243. 


INDEX. 
[The  figure*  refer  to  rfiltij 

CONVERSION,  EQUITABLE}— Oonfd. 
reconversion,  defined,  244. 
when  takes  place,  244. 
by  election,  244. 
by  operation  of  law,  248. 
OOPX  RIGHTS, 

protection  of,  by  Injunction,  595. 

jurisdiction  of  federal  courts,  690. 
infringement,  what  constitutes,  687. 

CRIMINAL  INDICTMENT, 
not  tried  In  equity,  28. 

CURIA  REGIS, 

how  constituted,  4. 

OT-PRES  DOCTRINE, 

stated  and  described,  398. 
DE  BENE  ESSE, 

taking  testimony,  suit  for,  637. 
DECEDENTS, 

estates,  effect  of  statutes,  27. 
DEED, 

absolute,  when  treated  as  a  mortgage,  453. 
rule  based  on  intention  of  parties,  454, 
admissibllity  of  parol  evidence,  464. 

DISCOVERY,  BILL  OF, 

defined,   680. 

when  maintainable,  630. 

effect  of  modern  statutes,  632. 
reformed  procedure,  632. 

right  confined  to  material  facts,  633. 

cannot  be  maintained  in  aid  of  criminal  proceedings,  633. 

criminating  matters,  634. 

confidential  communications,  634. 

disclose  matters  of  state,  634. 
DOWER, 

definition,  615. 

assignment,  jurisdiction  of  equity,  615. 

DRUNKENNESS, 

contracts  with  intoxicated  persons,  318. 

DURESS, 

laches  not  Imputed  to  person  under,  67. 
contracts  with  persons  under,  319. 
what  constitutes,  319. 
ELECTION, 

definition,  180. 
doctrine  stated,  180. 
foundation,  181. 
origin,  1SL 


712  INDEX. 

[The  figure!  refer  to  pftfttj 

•LECTION— Cont'd. 

to  take  under  instrument,  182. 

against  instrument,  182. 

rule  as  to  compensation,  183. 
doctrine  applies  to  all  property  and  interests,  184. 

applicable  to  deeds  as  well  as  wills,  184. 
conditions  necessitating,  185. 

donor  must  intend  to  dispose  of  another's  property,  185. 

gift  of  property  of  donor,  185. 

disposition  of  partial  interest,  188. 

evidence  outside  Instrument,  187. 

disposition  of  after-acquired  lands,  187. 

by  will,  which  is  ineffectual,  188. 
under  powers  of  appointment,  188. 
doctrine  not  applicable  to  two  distinct  gifts,  190t 
between  dower  and  testamentary  gift,  190. 

adequacy  of  testamentary  gift,  192. 

Inconsistency  of  gift,  193. 
manner  of  making,  195. 

express,  what  is,  195. 

implied,  what  is,  195. 
Talues  of  properties,  ascertainment,  198. 
by  persons  under  disabilities,  197. 

married  women,  197. 

infants  and  lunatics,  197,  198. 
time  when  made,  199. 
once  made  is  irrevocable,  199. 

to  take  money  directed  to  be  laid  out  In  land  In  place  of 
land,  244. 

ENGLAND. 

abolishment  of  separate  legal  and  equitable  tribunals,  1& 

EQUITABLE  CONVERSION, 
see  "Conversion." 

EQUITABLE  ESTOPPEL, 
see  "Estoppel,  Equitable." 

EQUITABLE  LIENS, 

see  "Liens,  Equitable.** 

EQUITABLE  MORTGAGE, 
see  "Mortgage." 

•QUITY, 

and  natural  Justice,  distinction,  L 

meaning,  1. 

definition,  2. 

history,  Importance  of,  3. 

procedure,  adaptability  of  decrees,  17. 

tribunals,  separate,  abolished,  18. 


INDEX.  713 

[The  figures  refer  to  pages.] 

EQUITY— ContU 

administration  In  United  States,  ZL 

classification  of  states,  21. 

abolishment  of  separate  tribunals,  23. 
and  common  law,  relationship  modified,  28. 
Jurisdiction,  definition,  28. 

criminal  indictment  not  within,  28. 

multiplicity  of  suits,  to  prevent,  35-39. 

retention,  to  award  complete  relief,  39. 

assumption  of,  by  courts  of  law,  effect,  41. 
follows  the  law,  47. 
aids  the  vigilant,  52. 
equality  is,  58. 
equal,  law  prevails,  61. 

first  in  order  of  time  shall  prevail,  62-64. 
he  who  seeks,  must  do  equity,  65. 

application  of  maxim,  66. 

doctrine  of  estoppel  based  on,  69. 
he  who  comes  into,  must  come  with  clean  hands,  69. 

refers  to  misconduct  connected  with  subject  of  litigation, 
69,  71. 

when  both  parties  are  engaged  in  fraudulent  transaction, 
69,  72. 

application  generally,  74^76. 
looks  on  that  as  done  which  ought  to  be  done,  77. 

application,  78-80. 

Imputes  an  intent  to  fulfill  an  obligation,  86,  87. 
acts  in  personam,  88. 

descriptive  of  procedure,  88. 
acts  specifically  and  not  by  way  of  compensation,  94, 

EQUITY  JURISDICTION, 

exercise,  in  state  courts,  3. 
causes  of  existence,  11. 

inflexibility  of  common  law,  11, 

common-law  procedure,  11,  14. 

inadequacy  of  common-law  remedies,  11,  18, 
king's  prerogative  as  source,  12. 
separate  tribunals  abolished,  18. 
in  United  States,  19. 
definition,  28. 

criminal  indictment  not  within,  28. 
exercise  of,  equitable  right,  title,  or  Interest,  30. 

remedy  sought  must  be  equitable,  30. 

inadequacy  of  legal  remedy,  30,  31. 
not  ousted  by  Jurisdiction  of  courts  of  law,  34, 
to  prevent  multiplicity  of  suits,  35. 

when  will  be  exercised,  35-39. 
retained  to  award  complete  relief,  39. 

not   affected  by   similar   jurisdiction   assumed   by   courts  of 
law,  41. 


714  INDEX. 

[The  figures  refer  to  page*.] 

EQUITY  JURISDICTION— ContU 
auxiliary,  42. 

acts   agaiiist   person,   88-90. 
decrees,  effect,  90. 
in  cases  of  fraud,  285. 

ESTOPPEL,    EQUITABLE, 

doctrine   based  on   maxim,    "He  who   seeks   equity   murt  do 

equity,"  69. 

consists  of  what,  165.  * 

doctrine  stated,  165. 

and  legal  estoppel  in  pals,  distinction,  168. 
origin  of  doctrine,  167. 
fraud  as  a  basis,  168. 
essential  elements,  169. 

conduct  or  words,  170. 

silence,  misleading,  170. 

representations  in  conflict  with  record  title,  170. 

character  of  representations,  171. 

knowledge  by  party  estopped,  172. 

Ignorance  of  facts,  172. 

intention  of  party  estopped,  173. 
may  be  presumed,  174. 

conduct  or  words  must  be  acted  upon,  175. 

Injury  must  be  sustained,  176. 
limited  to  representations  made,  176. 
operates  to  place  person  in  former  position,  176. 
does  not  operate  In  favor  of  a  stranger,  177. 

nor  to  enforce  contracts  of  infants,  177,  178. 

nor  In  favor  of  person  chargeable  with  fraud  or  negligence, 

177,  179. 
EVIDENCE, 

admissibility  of  parol,  to  sustain  or  rebut  satisfaction,  202. 

to  correct  mistakes.  278. 

effect  of  statute  of  frauds,  279. 

to  show  nature  of  purchase  In  name  of  another,  407. 

to  show  that  deed  was  Intended  as  a  mortgage,  454. 

to  show  variance  In  contract  sought  to  be  specifically  per- 
formed,  561. 
of  fraud  or  mistake,  reformation,  622. 

admissibility  of  parol,  622. 
EXCHEQUER.  COURT  OF, 

established  by  William  the  Conqueror,  5. 
Jurisdiction.  6. 

EXONERATION, 

where  mortgage  debt  la  paid  by  person  not  primarily  liable, 
470. 

payment  of  debt  by  person  secondarily  liable,  610, 
FALSE   REPRESENTATIONS, 

aee  "Estoppel,  Equitable";   "Fraud." 


INDEX.  715 

[The  figures  refer  to  pages.] 

FIDUCIARY  RELATIONSHIP. 

see  "Frauds";   "Trusts." 
contracts  between  persons  In,  321. 
gifts  inter  vlvos,  presumptively  fraudulent,  880. 

FORECLOSURE, 

of  mortgages,  strict,  464. 
by  judicial  sale,  464. 
by  sale  under  a  power,  465. 
concurrent  remedies,  466. 

FORFEITURES, 

see  "Penalties." 
doctrines   based  on   maxim,    "Equity  looks  to   Intent  rather 

than  form,"   83,  .96. 
equity  will  relieve  against,  95. 
doctrine,   application,  95,  96. 
definition,  97. 
penalty,  distinguished,  97. 
equity  will  not  enforce,  110. 

when  will  afford  relief,  111. 
statutory,  equity  will  not  relieve  against,  112. 

FRAUD, 

jurisdiction  of  equity  in  cases  of,  283. 
when  exercised,  284. 
not  exercised  in  cases  of  wills,  285. 
what  constitutes,  286. 
classification,   287. 
actual,  what  constitutes,  287. 
constructive,  what  constitutes,  287. 
actual,  misrepresentations,  288. 

misrepresentation,  when  relievable  in  equity,  288, 
must  be  untrue,  289. 
expression  of  opinion,  290. 
praise  of  goods  sold,  290. 
opinion  of  expert,  291. 
assertion  as  to  value,  291. 
knowledge  of  untruth,  293. 
statements  with  no  knowledge,  294. 
must  be  relied  on,  295. 

statement  by  vendor  as  to  his  financial  ability,  295. 
communications  to  commercial  agencies,  296. 
knowledge  of  falsity  by  person  to  whom  representa- 
tion is  made,  297. 
must  be  material,  299. 
fraudulent  concealment,  300. 
fact  must  be  material,  300. 
duty  to  disclose,  300,  301. 

by  parties  in  fiduciary  relationship,  302. 
by  vendor  of  his  financial  condition,  303. 


716  INDEX. 

[The  figures  refer  to  pagtt.] 

FRAUD — Cont'd. 

renders  transaction  voidable,  304. 
rescission  on  discovery,  304. 
remedies  afforded  in  equity,  305. 

must  be  sought  within  reasonable  time,  808. 
constructive,   classification,  306. 

Inadequacy  of  consideration,  307. 

coupled  with  inequitable  circumstances,  308. 
contrary  to  statute,  public  policy,  or  good  morals,  SOT. 
catching  bargains.  309. 
contracts  contrary  to  statute,  310. 
usurious  and  gambling,  310. 
against  public  policy,  311. 
Interfering  with  rights  of  marriage,  311, 
In   restraint  of  trade,   312. 
sale  of  emoluments  of  public  office,  313. 
Inferred  from  condition  of  parties,  314. 
transactions  with  persons  totally  or  partially  Incapacitated, 

315. 

lunatics,  316. 

persons   of  weak   mind,   317. 
Intoxicated  persons,  318. 
persons  under  duress.  319. 

under  circumstances  constituting  undue  Influence,  319. 
between  persons  In  fiduciary  relationship,  321. 
trustees  and  beneficiaries,  322. 
principal  and  agent,  324. 
attorney  and  client,  326. 
guardian  and  ward,  328. 
parent  and  child,  328. 
•          promoters  of  corporations,  329. 

executors  and  administrators,  329. 

gifts   inter  vivos   between   persons  In  fiduciary  relation- 
ship, 330. 

physician  and  patient,  332. 

transactions  valid  by  confirmation  and  ratification,  833. 
by  acquiescence,  333,  334. 
by  lapse  of  time,  334. 

upon  third  persons  not  parties  to  contract,  335. 
creditors,  335. 

compositions  with  creditors,  336. 
preference  to  certain  creditors,  338, 
fraudulent  conveyances,  337. 
what  constitutes,  337. 
creditor  to  be  defrauded,  337. 

debt  reduced  to  Judgment,  337. 
•nbsequent  creditor  may  avoid,  338, 
intent  to  defraud,  339. 

what   constitutes,   339,   340. 
transfer  of  property,  341. 


INDEX.  717 

[The  figures  refer  to  pages.] 

FRAUD— Cont'd. 

property  must  be  valuable,  341,  342. 

of  legal  title  to  equitable  owner,  342. 
on  marital  rights,  343. 

by  conveyance  of  property  subject  of  marriage  contract, 

843. 

on  powers,  344. 

laches,  time  begins  to  run  from  discovery,  56. 
as  a  basis  of  equitable  estoppel,  168. 
defense  in  suit  for  specific  performance,  537,  542. 
as  grounds  for  reformation,  619. 

evidence  must  be  clear,  622. 
cancellation  of  written  instruments  because  of,  625. 

FRAUDS,  STATUTE  OF, 
see  "Statute  of  Frauds.' 

FRAUDULENT  CONVEYANCE, 
what  constitutes,  337. 
creditor  to  be  defrauded,  337. 
debt  reduced  to  judgment,  337. 
subsequent  creditor  may  avoid,  338. 
Intent  to  defraud,  339. 

what  constitutes,  339,  340. 
transfer  of  property,  341. 
property  must  be  valuable,  341,  342. 
of  legal  title  to  equitable  owner,  342. 

GIFTS, 

to  person  in  fiduciary  relation,  presumptively  fraudulent,  880. 

GUARDIAN, 

transactions  with  ward,  when  constructively  fraudulent,  328. 
gifts,  when  fraudulent,  831. 

HISTORY, 

of  courts  of  chancery,  1. 

IDIOTS, 

transactions  with,  constructively  fraudulent,  315. 

INADEQUACY  OF  LEGAL  REMEDY, 

of   common-law   remedies,   productive  of  equity  jurisdiction, 

11,  16. 

In  cases  of  accident,  248. 
foundation  of  remedy  of  accounting,  516. 
by  award  of  damages,  specific  performance  decreed,  528* 
as  ground  of  exercise  of  jurisdiction  by  Injunction,  667. 
to  prevent  trespass,  585. 

nuisances,  588. 
INFANTS, 

election  by,  how  made,  197. 


718  INDEX. 

[The  figures  refer  to  paces.] 
INJUNCTION, 

definition,  563. 

precedent  in  interdict  of  Roman  law,  563. 

classification,  564. 

mandatory,  defined,  564. 

compelling  performance  of  a  positive  act,  565. 
preventive,  denned,  564. 
duration,  temporary,  566. 

permanent,  566. 

principles  governing  jurisdiction,  566. 
adequacy  of  legal  remedy,  567. 
irreparable  injury,  567. 
when  granted,  568. 

against  legal  proceeding,  569. 

prosecution  of  actions  at  law,  569. 
Judgments,   rules  regulating,  570. 

newly-discovered  evidence,  571. 
to  prevent  breach  of  contract,  573. 

contracts  concerning  real  estate,  574. 
not  to  engage  in  business,  575. 
for  personal  services,  576. 
to  prevent  torts,  577. 

injury  not  capable  of  compensation  In  damages,  877. 
violation  of  a  legal  right,  577. 
not  granted  where  injury  is  trivial,  577. 
to  protect  other  than  property  rights,  579. 

libel  and  slander,  580. 
protection  of  real  property,  582. 
waste,  what  is,  582. 

actual  possession  in  wrongdoer,  583. 
who  entitled  to  remedy,  584. 
trespass,  grounds  of  remedy,  584. 
irreparable  injury,  585. 
multiplicity  of  suits,  585. 
Inadequacy  of  legal  remedy,  585. 
title  of  plaintiff  must  be  clear,  588. 
mulsances.  what  constitute.  587. 
public,  action  to  restrain,  587. 
private,  motives  of  action  to  restrain,  588. 

Injury  to  dwellings  and  places  of  business,  689. 
Impurities  and  noises,  590. 
lateral  support,  592. 
riparian  and  water  rights,  592. 

protection  of  patents,  copyrights,  and  trade-marks,  596. 
jurisdiction  of  federal  courts,  596. 
when  remedy  afforded,  596. 
copyrights,  definition,  597. 

infringement,  what  constitutes,  597. 
literary  property,  598. 
trade-mark,  what  constitutes,  599. 


INDEX.  719 

[The  figures  refer  to  pages.] 

INJUNCTION— Cont'd. 

to  prevent  breach  of  trust,  600. 
In  matters  of  taxation,  601. 

when  will  be  granted,  601. 
against  public  officers  and  municipalities,  608. 

when  Jurisdiction  will  be  exercised,  603. 

breach  of  trust  by  public  officers,  603. 

illegal  acts  by  public  officers,  603. 

legal  right  to  relief,  603. 

INSANITY, 

includes  what,  310. 

INTENT, 

equity  looks  to,  rather  than  from,  81. 

application  of  maxim,  82-86. 
to  fulfill  an  obligation,  equity  imputes,  SQL 

application,  86. 

INTEREST, 

usurious,  recovery,  73. 

INTERPLEADER, 

bill,  when  maintainable,  639. 
what  to  state,  640. 
object,  640. 

when  right  to  file  exists,  641. 
essential  features,  641. 
privity  of  title,  643.  ' 

claimant  to  have  no  beneficial  Interest,  643. 
no  independent  personal  liability,  644, 

INTOXICATION, 

defense  in  suit  for  specific  performance,  538. 

JUDGMENT, 

lien  created  by  contract  superior,  119. 

JUDICIARY, 

of  early  Norman  England,  4, 
chief  Justiciary,  4. 
curia  regis,  4. 
Justices  In  eyre,  5. 

JURISDICTION, 

see  "Equity  Jurisdiction.'* 

LACHES, 

equity  aids  the  vigilant,  52. 

legal  disabilities  excuse,  52. 

statute  of  limitations,  effect,  53. 

what  constitutes,  54. 

fraud,  time  begins  to  run  from  time  of  discovery,  50. 

when  not  imputed*  57. 


720  INDEX. 

[The  figures  refer  to  paces.] 
LAW, 

inflexibility,  productive  of  equity  Jurisdiction,  11, 
procedure,  Inelasticity,  effect,  11,  14. 
inadequacy  of  remedies,  effect,  11,  16. 
equity  follows,  47-52. 

application  of  maxim,  49,  50. 
prevails,  when  equities  are  equal,  61. 

LEGACIES, 

satisfaction,  see  "Satisfaction." 

LIENS,  EQUITABLE, 

definition  and  nature,  474. 

equitable  mortgages,  how  created,  475. 

agreement  to  give  a  mortgage,  476. 

imperfect  execution,  476. 

deposit  of  title  deeds,  477. 

mortgage  of  an  equitable  estate,  479. 
arising  from  consideration  of  justice,  479. 

improvements  by  occupant  of  land,  479. 
by  joint  owner,  480. 
by  tenant  for  life,  481. 
arising  from  charges  by  will  or  deed,  481. 

devise  or  bequest  subject  to  payment  of  debts,  481. 
to  payment  of  legacies,  482. 

effect  on  liability  of  personalty,  483. 
renders'  liens  for  unpaid  purchase  money,  484. 

under  contracts  of  sale,  485. 

arising  after  conveyance,  486. 

enforcement,  488. 

waiver,  489. 

express  reservation,  490. 

LIQUIDATED  DAMAGES, 

payment  of  money  as,  when  enforceable,  101. 
or  penalty,  determination,  102. 

when  damages  cannot  be  computed,  102,  104. 

Intent  of  parties,  106. 

liquidation  must  be  reasonable,  106. 

language  not  conclusive,  107. 

nonpayment  of  smaller  sums,  108. 

contract  providing  for  more  than  one  thlnf,  108L 

US  PENDENS, 

notice,  requisites,  151,  152. 

applies  to  all  suits  involving  title  to  real  estate, 
when  applicable  to  personal  property,  164 
persons  affected  by,  155. 

LUNATICS, 

election  by,  how  made,  197. 

transactions  with,  constructively  fraudulent,  816,  818. 
only  voidable,  316. 


INDEX.  721 

[Th«  figures  refer  to  pages.] 
MARITAL  RIGHTS, 

conveyance  of  property,  when  a  fraud  on,  343, 

MARRIED  WOMEN, 

enabling  acts,  effect  on  equity,  27. 
MARSHALING, 

doctrine  stated,  513.    • 

not  applicable  against  Interests  of  third  parties,  514. 
use  for  protection  of  prior  mortgagees,  515. 
MAXIMS, 

no  wrong  without  a  remedy,  44-47. 

Importance,  44. 

application,  45. 

wrong  must  be  within  scope  of  Judicial  action,  48. 
equity  follows  the  law,  47. 

application  where  legal  rights  are  considered,  47,  49. 
where  equitable  estates  are  considered,  47,  50. 

meaning  of  principle,  48. 
equity  aids  the  vigilant,  52. 

legal  disabilities,  effect,  52. 

statute  of  limitations,  effect,  53 

laches,  what  constitutes,  54. 
effect  of  fraud,  55. 
when  not  imputed,  57. 
equality  Is  equity,  58. 

application,  58-61. 
equal  equities,  law  prevails,  61. 
equal  equities,  the  first  in  order  of  time  shall  prevail,  62. 

true  meaning  of  principle,  63. 

priorities  and  notice,  doctrines  based  on,  64. 
he  who  seeks  eqtiity  must  do  equity,  65. 

application,  66-68. 

doctrine  of  estoppel  based  on,  69. 
he  who  comes  into  equity  must  come  with  clean  hands,  69. 

refers  to  misconduct  connected  with  subject  of  litigation, 
69,  71. 

both  parties  engaged  In  unlawful  transaction,  69,  72. 
-  recovery  of  usurious  Interest,  73. 

applies  to  all  unrighteous  conduct,  74. 
equity  looks  on  that  as  done  which  ought  to  be  done,  77. 

conversion  based  on,  78. 

trust,  principles  based  on,  79. 

equity  of  redemption  based  on,  80. 

application  in  cases  of  fraud,  80. 
equity  looks  to  Intent,  rather  than  form,  «L 

conversion,  doctrines  based  on,  82. 

penalties  and  forfeitures,  83. 

mortgages,  effect  upon,  84. 

Instruments  under  seal,  85. 
equity  Imputes  an  intent  to  fulfill  an  obligation,  88. 

application,  86,  87. 
EATON.EQ.— 46 


722  INDEX. 

[The  flgurei  refer  to  paces.] 

MAXIMS— Confd. 

equity  acts  in  personam,  88. 

force  modified  by  statute,  88* 

jurisdiction  of  person,  90. 
equity  acts  specifically,  94. 

not  by  way  of  compensation,  94. 

MENTAL  WEAKNESS, 

effect  upon  contracts,  317. 

MISTAKE, 

definition,  255. 
accident  distinguished,  255. 
equitable  jurisdiction  in  cases  of,  253. 
classification,  257. 

mistake  of  law,  defined,  257. 
mistake  of  fact,  defined,  257. 
Of  law,  when  relief  will  be  granted,  258. 
nature  and  circumstances,  259. 

rule  as  to  relief  applied  in  cases  of  undue  Influence,  260. 
reformation  of  instruments  because  of,  201. 

rule  stated,  262. 
as  to  existing  legal  rights,  263. 
compromises  not  affected  by,  264. 
recovery  of  money  paid  under,  265. 
Of  fact,  contract  made,  voidable,  266. 

power  of  court  to  relieve  against,  26ft. 
classification,  267. 
When  mutual  or  fundamental,  267. 
as  to  nature  of  transaction,  268. 
as  to  person  with  whom  contract  Is  made,  268 
as  to  subject-matter,  269. 
of  one  of  parties  as  to  subject-matter,  271. 
fact  must  be  material,  271. 
must  be  free  from  culpable  negligence,  273. 
rule  as  to  diligence,  273. 
obligation  to  disclose  knowledge,  274. 
Of  expression  of  intention  of  parties,  275. 
reformation  to  correct,  275. 
must  be  mutual,  275. 
when  contract  has  been  executed,  27d. 
apparent  on  face  of  instrument,  277. 
parol  evidence  to  correct,  278. 
effect  of  statute  of  frauds,  279. 
correction  of  defective  execution  of  powers,  281. 
restoration  of  parties,  282. 
defense  in  suit  for  specific  performance,  542. 
reformation  had  because  of,  619. 

evidence  must  be  clear,  positive,  and  convincing,  622L 
.•uluiissihility  of  parol  evidence,  (>_U. 
cancellation  of  written  instruments  because  of,  625. 


INDEX.  723 

[The  figures  refer  to  pages.) 
MORTGAGE, 

on  real  estate,  common-law  doctrine,  445. 

modern  application  of  common-law  doctrine,  448. 
equitable  theory,  446. 

security  for  debt,  446. 

Interest  of  mortgagee  a  lien  on  land,  446. 

origin  of  doctrine,  447. 

equity  of  redemption,  448. 
In  the  United  States,  449. 

effect  of  statutes,  449. 

states  where  equitable  rule  has  been  adopted,  450. 

dual  English  system,  451. 
definitions,  452. 
objects,  453. 
absolute  deed,  when  treated  as,  453. 

admissibility  of  parol  evidence,  454, 
conditional  sale  as  a,  456. 
to  secure  future  advances,  457. 

validity,  457. 

priority  over  subsequent  liens,  457. 
assignment  carries  mortgage  with  it,  459. 
conveyance  of  premises  subject  to,  460. 

liability  for  debt,  461. 

effect  of  covenants,  461. 

enforcement  of  grantee's  liability,  462, 
foreclosure,  strict,  463. 

by  Judicial  sale,  464. 

by  sale  under  a  power,  465. 

concurrent  remedies,  466. 
mortgagor,  rights,  466. 

to  remain  in  possession,  467. 

rents  and  profits,  467. 

liability  for  waste,  467. 
mortgagee  in  possession,  467. 

use  of  premises,  467. 
redemption,  who  entitled,  468. 

how  made,  468. 

subrogation  of  person  redeeming,  468,  470t 
on  personal  property,  defined,  472. 

rights  of  mortgagor  and  mortgagee,  472. 
equity  of  redemption,  472. 
equitable,  defined,  475. 
how  created,  475. 

see  "Liens,  Equitable." 
principles  based  on  maxim,  "Equity  looks  to  Intent,  rather  than 

form,"  83. 
on  specific  land,  superior  to  Judgment,  119. 

MULTIPLICITY  OF  SUITS, 

equity  will  exercise  jurisdiction  to  prevent,  35. 
When  will  be  exercised, 


724  INDEX. 

[The  figures  refer  to  pages.] 

MULTIPLICITY  OF  SUITS— ContU 
between  two  parties,  37. 

one  party  and  a  number,  38. 
aa  ground  for  Injunction  against  tort,  577. 
to  prevent  trespass,  685. 
nuisances,  588. 

KB  EXEAT, 

writ,  defined,  638. 

when  granted,  639. 

NORMAN  ENGLAND, 
Judiciary  of,  4. 

NOTICE, 

of  an  equity,  taking  with,  122. 
definition,  123. 

need  not  be  actual  knowledge,  123. 
doctrine,  origin,  123, 
enunciation,  124. 
classification,  .125. 
actual,  defined,  125. 
constructive,  defined,  125. 

distinction  between  actual  and  constructive,  1261 
actual,  express  or  implied,  127. 
express,  what  constitutes,  127. 
Implied,  what  constitutes,  127. 
not  confined  to  actual  knowledge,  128, 
Information  to  constitute,  129. 
notice  to  agent  is  notice  to  principal,  132. 
reason  for  rule,  132. 
when  will  not  bind  principal,  133. 
scope  of  agency,  134. 
material  fact,  135. 
constructive,  examples,  136. 

legal  presumption  of  notice,  136, 
presumption  rebuttable,  136,  137. 
possession  of  real  property,  137. 

actual,  open,  and  notorious,  138. 
sufficiency,  139. 

by  tenant,  notice  of  rights  of  tenant,  140. 
by  grantor  after  execution  and  delivery  of  deed,  141. 
effect  of  record  title,  142. 
presumption  rebuttable,  143. 
registration,  operates  as,  144. 
statutes,  effect  of,  144,  145. 
requisites  of  recording,  145. 
failure  to  index,  147. 
notice  to  whom,  148. 
recitals  In  title  papers,  148. 

Inspection  of  papers  required,  149. 
application  of  doctrine,  150. 


INDEX.  726 

[The  figures  refer  to  page*.] 

NOTICE— Cont'd. 

Us  pendens,  effect  of  judgment  or  decree,  151. 
object  of  rule,  152. 

pleadings  to  be  definitely  described,  153. 
notice,  applies  to  all  suits  Involving  title  to  real  proper- 
ty, 153. 

when  applicable  to  personal  property,  154. 
persons  affected  by  notice,  155. 
statutory  enactments,  155. 

NUISANCES, 

what  constitute,  587. 

public,  action  to  restrain,  587. 

private,  grounds  of  action  to  prevent,  588. 

injury  to  dwellings  and  places  of  business,  689. 

ORIGIN, 

of  courts  of  chancery,  1. 

PARENT, 

transactions  with  child,  when  constructively  fraudulent,  328, 
gifts  from  child,  when  fraudulent,  331. 

PARTITION, 

definition,  606. 
jurisdiction  of  equity,  607. 
regulated  by  statutes,  607,  609. 
procedure  In  equity,  609. 

mutual  conveyance,  609. 

owelty,  if  estate  cannot  be  exactly  divided,  608. 

sale  of  property,  610,  611. 
who  may  compel,  611. 
property  subject  to,  613. 
allowance  for  improvements,  614. 

PATENTS, 

protection  by  Injunction,  595. 

jurisdiction  of  federal  courts,  595. 

PART  PERFORMANCE, 

to  take  contract  without  statute  of  frauds,  552. 

PARTNERSHIPS, 

interests  of  partners,  application  of  doctrine  of  conversion,  226. 

PENALTIES, 

doctrine  based  on  maxim,  "Equity  looks  to  Intent,  rather  than 

form,"  83,  96. 
accessory  to  contract,  95. 
equity  will  relieve  against,  95. 
doctrine,  application,  95,  96. 
definition,  97. 
and  forfeiture,  distinction,  97. 


726  INDEX. 

[The  figures  refer  to  paces.) 

PENALTIES— Cont'd. 

relief  against,  general  test,  99. 

if  penalty  is  to  secure  payment  of  money,  99,  100. 

if  adequate  compensation  can  be  made  for  nou performance, 

100. 
liquidated  damages,  when  permitted,  101. 

rules  governing  determination,  102. 

when  damages  cannot  be  ascertained,  102,  104, 

Intent  of  parties,  106. 

language  not  conclusive,  107. 

nonpayment  of  smaller  sum,  108. 

contract  providing  for  more  than  one  thing,  108,  109. 
•tatutory,  equity  will  not  relieve,  112. 

PERFORMANCE, 

doctrine  stated,  220. 

and  satisfaction,  distinction,  220. 

application  of  doctrine,  221. 

covenant  to  purchase,  and  purchase  Is  made,  221. 
covenant  to  leave  by  will,  and  under  intestacy  property  la 
received,  221. 

PERPETUATION  OF  TESTIMONY, 
bills  to,  object,  630. 

Jurisdiction  of  equity,  63ft. 
effect  of  statutes,  637. 

PERSONAL  PROPERTY, 

mortgages,  see  "Chattel  Mortgage." 

PHYSICIAN, 

gifts  from  patient,  when  presumptively  fraudulent,  832. 

PLEDGE, 

defined,  472. 

rights  of  parties,  472. 

POSSESSION, 
as  notice,  137. 

POWERS, 

defective  execution,  because  of  accident,  251. 

because  of  mistake.  281. 
fraud  on,  what  constitutes,  344. 

PRA5TOR, 

at  Rome,  jurisdiction,  12. 

PRECATORY  WORDS, 
to  create  trusts,  368. 

PRINCIPAL  AND  AGENT, 
notice  to  agent  132. 

transactions  constructively  fraudulent,  324. 
gifts,  when  fraudulent,  331. 


INDEX.  727 

[The  figures  refer  to  page*.] 
PRIORITIES, 

doctrine  based  on  maxim,  "Where  equities  are  equal,  first  In  or- 
der of  time  shall  prevail,"  64,  113. 
doctrine,  origin,  113. 

not  applicable  to  legal  estates,  114. 
•qual  equities,  order  of  time  prevails,  115. 
determination,  115. 
equity  will  not  Interfere  where  one  party  has  legal  estate, 

116. 

unequal  equities,  superior  will  prevail,  118. 
superiority  of  estate  created  by  contract,  118, 
trust  estate,  118. 
equity  In  specific  thing,  119. 
equity  of  party  misled,  120. 

PROCEDURE, 

at  common  law,  Inflexibility,  11,  14. 

QUIA  TIMET, 

see  "Cloud  on  Title." 

RECEIVERS, 

doctrine  stated,  645. 
object  of  appointment,  645. 
officers  of  the  court,  645. 
When  appointed,  647. 

property  of  infants,  648. 

partnerships  and  tenants  in  common,  648. 

decedents'  estates  and  estates  in  trust,  648, 

for  mortgagees,  650. 

for  corporate  bondholders,  650. 

of  corporations,  651. 

In  aid  of  judgment  creditors,  652. 

RECONVERSION, 
definition,  244. 
when  takes  place,  244. 
-     by  election,  244. 

by  operation  of  law,  246L 

RECORDING  ACTS, 
objects  of,  145. 
registration  under,  constructive  notice,  144,  145. 

REDEMPTION,  EQUITY  OF, 

doctrines  based  on  maxim,  "Equity  looks  on  that  as  done  which 

ought  to  be  done,"  80. 
Who  entitled,  46S. 

only  made  by  payment  of  entire  debt,  468. 
subrogation,  contribution,  and  exoneration,  where  debt  is  paid 

by  person  not  primarily  liable,  470. 
In  chattel  mortgages,  472. 


728  INDEX. 

[The  figures  refer  to  paces.] 
REFORMATION, 

exercise  of  equity  Jurisdiction,  618. 
mistake  made  by  both  parties,  619. 

by  one  party  and  fraud  of  the  other,  619. 
parties  In  whose  favor  granted,  621. 

against  creditors  and  purchasers  with  notice,  621. 
evidence  of  fraud  or  mistake  must  be  clear  and  positive,  822. 
admissibillty  of  parol,  022. 
effect  of  statute  of  frauds,  623. 
•f  instruments  because  of  mistake  of  law,  261. 

to  correct  mistake  of  expression  of  intention  of  parties,  275. 
when  contract  has  been  executed,  27tt. 
when  mistakes  are  apparent,  277. 

RESCISSION, 

of  contract  on  discovery  of  fraud,  304. 

RESTRAINT  OF  TRADE, 
contracts  fraudulent,  312. 

RIPARIAN  RIGHTS, 

actions  to  protect,  592. 

ROMAN  LAW, 

effect  on  equity  Jurisprudence,  13. 

SATISFACTION, 
definition,  201. 
doctrine,  when  applied,  201. 

evidence,  parol,  admitted  to  show  nature  and  effect  of  transac- 
tion, 202. 

to  rebut  or  sustain  presumption  of  satisfaction,  202. 
doctrine  applied,  203. 

classes  of  cases,  203. 

of  debt  by  legacy,  presumption  where  legacy  is  equal  to  or 
greater  than  debt,  204. 

when  presumption  will  not  prevail,  205. 

Intention  declared  or  manifested,  207. 

debt  owing  to  wife  or  child,  208. 
legacy  by  creditor  to  debtor,  208. 

does  not  affect  indebtedness,  20S,  209. 
Of  legacies  by  subsequent  legacies,  209. 

of  same  thing,  2(«>. 

of  same  amount,  209. 

unequal  in  amount,  209. 

by  different  instruments,  210. 

extrinsic  evidence.  211. 
Of  legacies  by  portions  or  advancements.  211. 

by  parent  or  person  in  loco  parentis,  211. 

technically  called  ademptJon,  212. 

In  favor  of  natural  child,  213. 

not  applicable  to  devises  of  real  property,  213. 

person  la  loco  parentis,  214. 


INDBX.  729 

m«  figure*  refer  to  p**M-1 

SATISFACTION— Oont'd. 

presumption  In  favor  of  ademption,  21B. 

effect  of  subsequent  codicil,  217. 

when  relationship  of  parent  and  child  does  not  exist,  217. 
of  portions  by  legacies,  219. 
performance,  distinguished,  220. 

SEALED  INSTRUMENTS, 
effect  of  seal,  27. 

SEPARATE  TRIBUNALS, 

for  law  and  equity,  abolished,  IS. 
in  states  of  United  States,  23. 
effect  of  abolishing,  24. 

SPECIFIC  PERFORMANCE, 
definition,  525. 
equity  jurisdiction,  525. 
Inadequacy  of  damages,  529. 
land  contracts,  527. 

contracts  respecting  certain  chattels,  527. 
Impracticability  of  legal  remedy,  528. 
exercise  of  jurisdiction  discretionary,  529. 

in  case  of  hardship  or  Injustice  to  one  party,  529. 
where  public  Interests  would  be  prejudiced,  529. 
Contracts  requiring  performance  of  personal  acts,  531. 
hiring  and  services,  531. 
to  perform  certain  acts  relating  to  laud,  531. 
which  are  revocable,  532. 
to  refer  disputed  matters,  533. 
against  the  person  of  defendant,  533. 
defenses,  incapacity  of  parties,  534. 
nonconclusion  of  contract,  535. 
want  of  mutuality,  536. 
want  of.  fairness,  537. 

in  cases  of  fraud,  537. 
intoxication,  538. 
hardship  of  contract,  539. 
Inadequacy  of  consideration,  539. 
coupled  with  fraud,  540. 
degree  of  inadequacy,  540. 
lapse  of  time  before  seeking  remedy,  541, 
fraud  and  mistake,  542. 
uncertainty  of  contract,  543. 
want  of  title,  545, 

marketable  title,  545. 
sufficiency  of  doubt  on  title,  546. 
grounds  for  existence  of  doubt,  547. 
default  of  plaintiff,  548. 

plaintiff  must  show  substantial  performance,  548. 
failure  to  perform  within  the  time,  549. 
when  time  is  essence  of  contract,  550. 


730  INDEX. 

[The  figures  refer  to  paces.] 

SPECIFIC  PERFORMANCE— Cont'd. 
statute  of  frauds,  651. 

part  performance,  552. 

not  applicable  to  certain  contracts,  653. 
must  be  certain,  553. 

acts  must  render  nonperformance  a  fraud,  554. 
possession  and  improvements,  555. 
ancillary  acts,  550. 
acts  capable  of  being  undone,  553. 
fraud  preventing  execution,  557. 
failure  to  plead,  557. 
With  a  variance,  558. 
as  to  time,  558. 
as  to  subject-matter,  559. 
parol  evidence  to  show,  561. 

rarlance  of  terms  of  written  instrument  by  parol  evidence  to 
correct  mistakes,  279. 

STATUTE  OF  FRAUDS, 

cannot  prevent  variance  of  written  contract  to  correct  mis- 
takes, 279. 

in  specific  performance,  280. 
effect  upon  introduction  of  parol  evidence  to  show  that  deed 

was  intended  as  a  mortgage,  454. 
defense  to  suit  for  specific  performance,  551. 
part  performance,  552. 

not  applicable  to  certain  contracts,  553. 
must  be  certain,  553. 

acts  must  render  uonperformance  a  fraud,  554k 
possession  and  improvements,  555. 
ancillary  acts,  556. 
acts  capable  of  being  undone,  556. 
fraud  preventing  execution,  557. 
failure  to  plead,  557. 
effect  on  reformation  of  written  instruments,  623. 

STATUTE  OF  LIMITATIONS, 

in  Actions  for  breach  of  trust,  441. 

SUBROGATION, 

where  mortgage  debt  Is  paid  by  person  not  primarily  liable,  470. 
doctrine  stated,  511. 
volunteer  not  entitled  to,  512. 

SUPERIORITY, 

of  equities,  see  "Priorities." 
of  trust  estate  over  voluntary  transfer,  118. 
of  estate  created  by  contract,  118. 
of  equity  in  specific  thing,  119. 
of  party  misled,  120. 

TAXATION, 

injunctions  in  matters  of,  601. 


INDEX.  781 

[The  figures  refer  to  pases.] 
TIME. 

order  of,  controls  where  equities  are  equal,  115. 
not  essence  of  contract,  541. 

TITLE  DEEDS, 

deposit  of,  equitable  mortgage,  477. 

TRADE-MARKS, 

protection  by  injunction,  599. 

TRESPASS, 

remedy  by  injunction,  584. 

grounds,  irreparable  injury,  585. 

inadequacy  of  legal  remedy,  585. 
multiplicity  of  suits,  585. 

TRUSTEES, 

who  may  be,  350. 

sovereign,  356. 

corporations,  356. 

municipalities,  357. 

married  women,  357. 

infants,  357. 

aliens,  358. 

court  of  equity  never  want,  358. 

acceptance  of  trust,  419. 

duty  to  carry  out  directions  of  trust,  420. 

to  acquire  outstanding  trust  property,  421. 

to  exercise  due  care  and  diligence,  422. 
delegation  of  powers,  423. 

employment  of  agents,  424. 

to  co-trustee,  425. 
Investment  of  trust  moneys,  426. 

loan  on  personal  security,  427. 

stock  of  corporations,  427. 
to  act  for  benefit  of  cestui  que  trust,  428. 
not  to  sell  to  themselves  or  buy  trust  property,  429. 
acts  of  co-trustee,  liability  for,  431. 
compensation,  433. 

English  rule,  433. 

American  rule  favors,  434. 
expenses,  reimbursement,  434. 
accounts  should  be  clear  and  accurate,  435. 

rendered  at  reasonable  times,  436. 
cestui  que  trust  may  follow  property,  436. 

rights  of  bona  iide  purchasers,  437. 

ability  to  identify,  438. 
,      breach  of  trust,  what  constitutes,  439,  440. 

liability  for,  enforcement  439,  440. 

bar  of  statute  of  limitations,  441. 
removal,  cause  for,  442. 
accounting,  equitable  jurisdiction,  518. 
dealing  with  beneficiary,  duty  to  disclose,  302. 


732  INDEX. 

[The  figures  refer  to  pages.] 

TRUSTEES— Confd. 

transactions  with  beneficiaries,  constructively  fraudulent,  822. 

no  benefit  to  trustee,  323. 

when  permitted  to  stand,  324. 
gifts  from  beneficiary,  constructively  fraudulent  830. 

TRUSTS, 

principles  based  on  maxim,  "Equity  looks  on  that  as  done  which 

ought  to  be  done,"  79. 
superiority  of  estates  created,  118. 
definition.  346. 
historical  statement,  347. 

Roman  fidei  commissum,  347,  348. 
first  introduced  to  avoid  statutes  of  mortmain,  849. 
oppressive  feudal  rights  of  the  lord,  350. 
statute  of  uses,  effect,  351. 
Classification,  express  and  implied,  353. 

express,  are  private  and  public  or  charitable,  353. 
implied,  are  resulting  or  constructive,  353. 
•zpress  private,  defined,  354. 
parties,  354. 

settlor,  who  may  be,  354. 
trustee,  who  may  be,  356. 
cestui  que  trust,  who  may  be,  358. 

certain  and  definite,  359. 
property  subject  to,  360. 

foreign  lands,  360. 
creation,  as  to  real  property,  361. 
as  to  personal  property,  361. 

under  statute  of  frauds  cannot  be  proved  by  parol  evi- 
dence, 3<>2. 

as  affected  by  statute  of  wills,  363. 
by  will,  defectively  executed,  363. 
language  employed,  365. 

intention  must  appear,  366. 

evinced  by  powers  conferred  and  duties  Im- 
posed on  trustees,  366. 
extent  of  estate  as  affected  by,  367. 
precatory  words,  what  are,  368. 
doctrine  stated,  368. 
modern  rule,  368. 

Voluntary,  consideration  not  material,  370. 
when  enforced,  370. 
must  be  transfer  of  legal  title,  372. 
explicit  declaration,  373. 
Imperfect  gift  not  a  declaration,  374, 
objects  must  be  legal,  875. 
Illegal  objects,  375. 

unreasonable  accumulations,  375. 

In  derogation  of  rights  of  creditors,  37QL 

against  statutes  of  mortmain,  373. 


INDEX.  788 

[The  figures  refer  to  pages.] 

TRUSTS— Cont'd. 

encouraging  immorality,  376. 
in  restraint  of  marriage,  376. 
illegal  in  part,  377. 
objects  restricted  by  statute,  378. 
executed  and  executory,  378. 
what  are  executed,  378. 
what  are  executory,  379. 
construction  of  executed,  379. 
, ...  of  executory,  379. 

active  and  passive,  381. 

active  or  special,  what  are,  381. 
rights  of  cestui  que  trust,  381, 
duties  of  trustee,  381. 
passive  or  simple,  what  are,  383. 
rights  of  cestui  que  trust,  383. 
duties  of  trustee,  383. 
assignment  for  benefit  of  creditors,  384. 
trust  relation  created,  384. 
irrevocable  by  assignor,  384. 
public  or  charitable,  defined,  385. 
objects  and  purposes,  385. 
statute  of  charitable  uses,  388. 
Characteristics,  389. 

uncertainty  of  objects  and  purposes,  8891. 
of  beneficiaries,,  389. 
of  trustees,  390. 

not  subject  to  rules  in  respect  to  perpetuities,  3901 
cy  pres  doctrine,  393. 
In  the  United  States,  394. 

classification  of  states,  394. 
Implied,  defined,  397. 

resulting,  defined,  397. 
classification,  397. 

where  owner  of  legal  and  equitable  estate  conveys  le- 
gal title,  400. 
failure  of  express  trusts,  402. 

by  lapse  or  for  illegality,  403. 
conveyance  without  consideration,  404. 
purchase  in  name  of  another,  405. 
in  name  of  stranger,  405. 

advancement  of  purchase  money,  408, 
proof  by  parol,  407. 
modern  legislation,  408. 
In  name  of  wife,  child,  or  relative,  409. 

presumed  advancement,  410. 
constructive,  defined,  411. 

purchases  with  trust  funds,  413. 
lease  of  trust  property,  414. 


734  INDEX. 

[The  flgurea  refer  to  paces.] 

TRUSTS— Oont'd. 

conveyance  of  trust  property  to  volunteer,  415. 

to  purchaser  with  notice,  416. 
bequests  and  devises  obtained  by  fraud,  417. 
cestui  que  trust  may  follow  trust  property,  438, 
breach,  injunction  to  prevent,  600. 

UNDUE  INFLUENCE, 

laches  not  imputed  to  persons  under,  57. 
exercise,  raises  presumption  of  fraud,  310. 
consists  of  what,  320. 

UNITED  STATES, 

supreme  court,  equity  Jurisdiction,  3. 
equity  Jurisdiction  In,  19. 

administration,  classification  of  states,  2L 
abolishment  of  separate  tribunals,  21. 
USES, 

see  "Trusts." 

VENDOR'S  LIEN, 

for  unpaid  purchase  money,  484. 

under  contracts  of  sale,  485. 

arising  after  conveyance  of  land,  486. 

enforcement,  488. 

waiver,  489. 

express  reservation,  490. 

WASTE, 

what  constitutes,  582. 
Injunction  to  prevent,  582. 
when  to  issue,  582. 
plaintiffs  title,  583. 
rights  of  remainder-men  and  reversloners,  584. 

mortgagors,  584. 
WILLS, 

frauds  In,  equity  Jurisdiction  not  exercised,  285. 
trusts  created  by,  363. 

when  defectively  executed,  363,  364. 

WITNESSES  DE  BENEJ  ESSE, 
examination,  637. 

WRITS, 

at  common  law,  nature,  15. 
how  issued,  15. 


WUT  PUBU8B1HO  CO.,  PBIKTKIU  AMD  •TKBBOTTFUt*.  ST.  FAOI*  MOM. 


Comprises  elementary  treatises  on  all  the  principal  sub- 
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are  made  prominent. 

(Die  "£?ornfcook  plan." 

Is  to  set  forth  the  leading  principles  in  black-letter  (like 
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And  to  give  the  necessary  amplification,  explanation,  ap- 
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This  shows  why  these  books  are  found  so  serviceable  as 
practitioners'  handbooks.  A  lawyer  may  want  to  be  re- 
minded of  the  law ;  in  that  case  he  wants  it  presented  in 
such  a  way  that  he  can  pick  out  what  he  needs  with  the 
least  trouble. 

*The  Hornbook  Series  now  includes  treatises  on  Agency,  Admi- 
ralty, Bailments,  Bills  and  Notes,  Common-Law  Pleading,  Constitu- 
tional Law,  Contracts,  Corporations,  Criminal  Law,  Criminal  Pro- 
cedure, Damages,  Elementary  Law,  Equity  Jurisprudence,  Equity 
Pleading,  Evidence.  Executors  and  Administrators,  Federal  Juris- 
diction and  Procedure,  Insurance,  International  Law,  Interpreta- 
tion of  Laws,  Mining  Law,  Negligence,  Partnership,  Persons  and 
Domestic  Relations,  Public  Corporations,  Real  Property,  Sales, 
Torts  (2  vols.)  and  Wills. 


Uniform  price,  $3.75  a  volume,  delivered. 
Bound  in  American  Law  Buckram. 


West  Publishing  Co. 

St.  Paul,  Minn. 

100  William  St.  225  Dearborn  St. 
New  York.  Chicago. 


O6559a 


on  negligence. 


1899.     G34  pages.     $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 
C.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11.  Negligence  of  Municipal  Corporations. 


06550  l 


Black  on  Construction  anb 
3nterpretatton  of  £atr>s. 

1911.    624  pages.    $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  and  Treatises  on  Constitution- 
al Law,  Judgments,  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Presumptions  in  Aid  of  Construction,  and  Consideration  of  Ef- 

fects and  Consequences  of  Act. 

5.  Literal  and  Grammatical  Construction,  Meaning  of  Language, 

and  Interpretation  of  Words  and  Phrases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Construction  of  Statute  as  a  Whole  and  with  Reference  to  Ex- 

isting Laws. 

9.  Interpretation  with  Reference  to  Common  Law. 

10.  Retrospective  Interpretation. 

11.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

12.  Strict  and  Liberal  Construction. 

13.  Mandatory  and  Directory  Statutes  and  Provisions. 

14.  Amendatory  and  Amended  Acts. 

15.  Construction  of  Codes  and  Revised  Statutes. 

16.  Adopted  and  Re-enacted  Statutes. 

17.  Declaratory  Statutes. 

18.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 

With  Key-Number  Annotations 

C6559b-2 


Black's  Constitutional  £atp. 

1910.     8G8  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 

Third  Edition. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 
C.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

8.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 

10.  The  Establishment  of  Republican  Government. 

11.  Executive  1'ower  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  of  Taxation. 

16.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

18.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

20.  Constitutional  Guaranties  in  Criminal  Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 

With  Key-Number  Annotations 
C6559b  -3 


on  (Tfye  £atp  of 
3ubtcial  Precebents 

or  t&e 

Science  of  Case  £atp 

1912.     766  pages.     $3.75  delivered 
By  H.  CAMPBELL  BLACK 


TABLE  OF  CONTENTS 

Chap. 

1.  Nature  and  Authority  of  Judicial  Precedents. 

2.  Dicta. 

3.  Doctrine  of  Stare  Decisis. 

4.  Constitutional  and  Statutory  Construction. 

5.  Rules  of  Property. 

6.  The  Law  of  the  Case. 

7.  Authority   of  Precedents   as   Between   Various   Courts  of   the 

Same  State. 

8.  Authority  of  Precedents  as  Between  the  Various  Courts  of  the 

United  States. 

9.  Decisions  of  Federal  Courts  as  Authorities  in  State  Courts. 

10.  Decisions  of  Courts  of  Other  States. 

11.  Decisions  of  Courts  of  Foreign  Countries. 

12.  Federal    Courts    Following   Decisions    of    State    Courts;     in 

General. 

13.  Same;   Matters  of  Local  Law  and  Rules  of  Property. 

14.  Same;    Validity  and  Construction  of  State  Constitutions  and 

Statutes. 

15.  Same;    Federal  Questions. 

16.  Same;    Commercial  Law  and  General  Jurisprudence. 

17.  Same;   Equity  and  Admiralty. 

18.  Same;    Procedure  and  Evidence. 

19.  Effect  of  Reversal  or  Overruling  of  Previous  Decision. 


C6559-31/2 


Clarlt  on  Contracts. 

1904.    693  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 
Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE    OF   CONTENTS. 


Chap. 

1.  Contract  In  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

6.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract. 


n ;.-,:,!  i  r, 


Clark  on  Corporations. 

1907.     721  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition :  By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 
G.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations — Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


C6559-6 


Clark's  Criminal  £atr>. 

1902.    517  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 
• 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


1 
Clark's  Criminal  Procebure. 

1895.     665  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  and  a  "Handbook  of 

Contracts." 


TABLE   OF  CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

C 

5.  Pleading — The  Accusation. 

6.  Pleading — The  Accusation. 

7.  Pleading — The  Accusation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidenca 

15.  Habeas  Corpus.  • 

C6559-8 


on  (Executors  cmb 
Clbmtnistrators, 

1897.     GOG  pages.    $3.75  delivered. 
By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

G.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

1(5.  Sales  ;iml  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

- '.'-.   Actions  against  Executors  and 'Administrators. 
24.  Statute  of  Limitations—  Set-off. 
2"i.  Evidence  and  Costs. 


o  ;r,.Y.  i  ;> 


1908.     765  pages.     $3.75  delivered. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  Law  of  the  University  of  Nebraska. 


TABLE   OF   CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posses- 

sions of  the  United  States. 

3.  The  Land  Department  and  the  Public  Surveys. 

4.  The  Relation  Between  Mineral  Lands  and  the  Public  Land 

Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead,  Timber 

and  Desert  Entries. 

6.  The  Relation  Between  Mineral  Lands  and  the  Various  Public- 

Land  Reservations. 

7.  The  Relation  Between  Mineral  Lands  and  Towusites. 

8.  Definitions  of  Practical  Mining  Terms. 

9.  Definitions  of  Mining  Law  Terms. 

10.  The  Discovery  of  Lode  and  Placer  Claims. 

11.  Who  May  and  Who  May  not  Locate  Mining  Claims. 

12.  The  Location  of  Lode  Claims. 

13.  The  Location  of  Mill  Sites. 

14.  The  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 

nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 

16.  The  Annual  Labor  or  Improvements  Requirements. 

17.  The  Abandonment,   Forfeiture,  and   Relocation  of  Lode  and 

Placer  Mining  Claims. 

18.  Uncontested  Application  to  Patent  Mining  Claims. 

19.  Adverse  Proceedings  and  Protests  Against  Patent  Applications. 

20.  Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Land  Entries  and  Patents. 

23.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

25.  Mining  Partnerships  and  Tenancies  in  Common. 

26.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


C6559-9i/o 


(Saton  on  (Scjutty. 

1901.     734  pages.    $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor   3d   Edition   Collier   on    Bankruptcy,   Co-Editor   American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

iHstruments  Law,  etc. 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


(Barbner  on  XPtlls. 

1903.     726  pages.     $3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE   OF  CONTENTS. 

Chap. 

1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 

be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

16.  Construction — Nature  and  Duration  of  Interests. 

177  Construction — Vested  and  Contingent  Interests — Remainders 
— Executory  Devises. 

18.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


(Btlmore  on  Partnership. 

1911.    About  775  pages.    $3.75  delivered. 

By  EUGENE  A.  GILMORE. 

Author  of  Gilmore's  Cases  on  Partnership 
(American  Casebook  Series). 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  Constitutes  a  Partnership. 

2.  Formation  and  Classification  of  Partnerships. 

3.  The  Nature  and  Characteristics  of  a  Partnership. 

4.  Nature,  Extent,  and  Duration  of  Partnership  Liability. 

5.  Powers  of  Partners. 

6.  Rights  and  Duties  of  Partners  Inter  se. 

7.  Remedies  of  Creditors. 

8.  Actions  Between  Partners. 

9.  Actions  Between  Partners  and  Third  Persons. 

10.  Termination  of  the  Partnership. 

11.  Limited  Partnerships. 


With  Key-Number  Annotations 


CGT>r,9b-13 


on  bailments  anb 
Carriers. 


1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE   OF   CONTENTS. 

Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges. 

5.  Bailments  for  Mutual  Benefit— Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


C0559-15 


on  Xtomages 


1912.    $3.75  delivered 

By  WM.  B.  HALE 

Author  of  "Bailments  and  Carriers" 

Second  Edition:    By  ROGER  W.  COOLEY 


TABLE  OF  CONTENTS 
Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph  Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 

With  Key-Number  Annotations 
06568b-16 


on  (Torts. 

1896.    636  pages.    $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE   OF  CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


C6559-17 


on  Keal  Property. 

1896.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity— Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional   Life  Estates. 
G.  Estates  as  to  Quantity — Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less   than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 

10.  Equitable  Estates. 

11.  Estates  as  to  Time  of  Enjoyment — Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 

16.  Title. 


on  dbmiralty. 

1901.    504  pages.     $3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE   OF   CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respoudentia ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(C)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  2G,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


C6559-19 


1904.    634  pages.    $3.75  delivered. 


By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introduction — What  it  Comprehends. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District    Court — Criminal     Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court — Bankruptcy. 
6-8.  Same — Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 
10.  The  Circuit  Court — Original  Jurisdiction. 
11-12.  Same— Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 
14-15.  Same — Continued. 

16.  The  Circuit  Court — Jurisdiction  by  Removal — Original  Juris- 

diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction — The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction— The  .Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


C6559-20 


3n<5ersoll  on  Public 
Corporations. 

1904.    738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  University  of  Tennessee  School  of  Law. 


TABLE   OF   CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 

Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal   Corporations. 

6.  Their  Creation— How— By  What  Bodies— Subject  to  What  Re- 

strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employe's. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15."  Streets,  Sewers,  Parks,  and  Public  Buildings. 

16.  Torts. 

17.  Debts,  Funds,  Expenses,  and  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Corporations. 


C6559-21 


on  Corts. 


1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 

Part  1.— IN  GENERAL. 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CGGoO-22 


on  (£»ibence. 

1907.     540  pages.    $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

107  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 

C6559-23 


Horton  on  23tlls  cmb  Hotes. 

1900.    600  pages.    $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


Shipment  on  (£ommon=£atp 


1895.     615  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  The  Parties  to  Actions?. 

4.  The  Proceedings  in  an  Action. 

5.  The  Declaration. 

6.  The  Production  of  the  Issue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


CG559-25 


Sfytpmcm  on  (Squity 


1897.     G44  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  "Shipman's  Common-Law  Pleading." 


TABLE   OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 

6.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


Smith's  (Slementary  £aux 

1896.    367  pages.     $3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF  CONTENTS. 

Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 

16.  Title  to  Real  Property. 

17.  Personal  Property. 

18.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associatious. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


Ciffany  on  Ctgency. 

1903.    609  pages.    $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  ''Law  of  Sales,"  etc. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratification. 

4.  What  Acts  Can  be  Done  by  Agent — Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person — Contract 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person— Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD  PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 

15.  Duties  of  Agent  to  Principal. 
10.  Duties  of  Principal  to  Agent. 

Appendix. 


1912.    610  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Tiffany  on  Sales,"  "Tiffany  on  Agency,"  etc. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Introductory. 

2.  Deposits. 

3.  Checks. 

4.  Payment  of  Checks. 

5.  Clearing  House. 

6.  Collections. 

7.  Loans  and  Discounts. 

8.  Bank  Notes. 

9.  Banking  Corporations. 

10.  Representation  of  Bank  by  Officers. 

11.  Insolvency. 

12.  National  Banks. 

13.  Savings  Banks. 
Appendix. 


With  Key-Number  Annotations 


C6559-28V2 


(Tiffany  on  Persons  anb 
Domestic  delations. 

1909.    656  pages.    $3.75  delivered. 

By  WALTER  C.  TIFFANY. 

Second  Edition :  Edited  by  Roger  W.  Cooley. 


TABLE   OF   CONTENTS. 
Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part  4.— INFANTS,   PERSONS    NON    COMPOTES   MENTIS, 
AND  ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part  5.— MASTER  AND   SERVANT. 

16.  Creation  and  Termination  of  Relation. 


OU",!)a-29 


^Tiffany  on  Sales. 

1908.     534  pages.     $3.75  delivered. 
By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE   OF   CONTENTS. 
Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession. 

6.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

Q.  Rights  of  Unpaid  Seller  against  the  Goods.  v 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act 


C6559a— 30 


Dance  on  3nsurance. 

1896.    683  pages.    $3.75  delivered. 

By  WILLIAM  REYNOLDS  VANCE, 
Professor  of  Law  in  the  George  Washington  University, 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  rules  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  much 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment, 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marino  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insurance, 
Appendix. 


C655D-31 


tDtlson  on 
3nternational 


1910.    623  pages.    $3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Persons  in  International  Law. 

2.  Existence,  Independence  and  Equality. 

3.  Property  and  Domain. 

4.  Jurisdiction. 

5.  Diplomatic  Relations. 

6.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agreements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 

9.  Non-Amicable  Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations. 

12.  Rights  and  Obligations  During  War. 

13.  Persons  During  War. 

14.  Property  on  Land. 

15.  Property  on  Water. 
10.  Maritime  Capture. 

17.  Rules  of  War. 

18.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Non-Hostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 

25.  Blockade. 

26.  Continuous  Voyage. 

27.  Unneutral  Service. 

28.  Prize. 


CH.r>T,!>-32 


^^  LAW  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


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